JUDGMENT

Brijesh Kumar, Member - This second appeal has been filed against the judgment and decree dated October 18, 1978 passed by the Additional Commissioner, Varanasi Division, Varanasi, in appeal No. 75/529 of 1969 filed against the judgment and decree dated August 25, 1969 passed by the trial court in a suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act.

2. Briefly stated, the facts of the case are the Vishwanath and others brought a suit under Section 229-B of U.P. Z.A. and Land Reforms Act against Duiji and others in the court of the Judicial Officer (Revenue) in respect of plot number 566-ka, kha and 658-ka and kha, situate in village Bhakharia, pergana Khaswar Raja, district Varanasi. The case of Vishwnath is that his father was Bhumidhar of the land in dispute on the basis of a lease executed in his favour on July 15, 1959. Duiji illegally occupied the land. Ram Prasad, the father of Vishwanath filed a suit for possession and the suit was decreed. In compliance of the decree Ram Prasad obtained possession on June 25, 1960 through the Kurk-Amin. Amaldaramad was issued but the Lekhpal did not enter his name in the relevant records. The appellant contested the suit in the ground that the plaintiffs had never been in possession. The Judicial Officer (Revenue) who decreed the suit had no jurisdiction and Amin never visited the plot and that the suit is barred by Section 34 of the U.P. Land Revenue Act. Sri S.P. Srivastava, Judicial Officer (Revenue), Varanasi, decreed the suit on August 25, 1969. Against this order the appellant went in appeal before the Additional Commissioner, Varanasi Division, Varanasi who dismissed the appeal upholding the decree passed by the learned trial court on October 13, 1978. This second appeal has been filed on the ground that the courts below adopted and procedure in refusing oral evidence let by the appellant and that the alleged decree relied by the respondent was only a paper transfer and delivery of possession, as the possession by the respondent was not given in accordance with rule 337 of the Revenue Court Manual.

3. I have heard the learned counsel for the parties and have also perused the record. The learned counsel for the appellant has made two submissions-firstly that the Kurk-Amin had not given the alleged possession in accordance with the provisions contained under Order XXI Rule 35, C.P.C. And Rule 337 of the Revenue Court Manual has also not been followed. His second submission is that though the plaintiff has been in possession of the land in dispute, the suit was filed after six years. The learned counsel for respondent has argued that Ram Prasad, the decree-holder was delivered possession in presence of two witnesses through Kurk-Amin Chandra Mohan and the court did not follow para 392 of the Revenue Court Manual.

4. Order XXI Rule 35 C.P.C. prescribes the procedure for delivery of possession. It is read as under:

"35 Decree of Immovable Property-(1) Where a decree is for the delivery of immovable property, possession thereof shall be delivered to the party whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refused to vacate the property.

(2)Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode; at some convenient place, the substance of the decree.

(3)Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the court through its officer, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or belt or break open any door or do any other act necessary for putt