JUDGMENT

R.S. Verma, Member - This revision has been filed against the order dated November 1, 1980 passed by Shri G. Bahadur, learned Additional Commissioner, Allahabad. He was hearing revision No. 127 of 1980 for setting aside order dated March 6, 1980 passed by Smt. Narayan Kakkar, Assistant Collector 1st Class, Smt. Kakkar, learned Assistant Collector, 1st Class, had on March, 6, 1980 set aside ex parte decree dated February 1, 1978 in a case under Section 209 of the U.P. Z.A. and L.R. Act.

2. Against that ex parte decree dated February 1, 1978, the defendant filed an application on May 14, 1979 for setting aside the ex parte decree on the ground that he had no knowledge about the suit or the decree against him and that he only came to know about the decree on May 7, 1979 in connection with some civil suit. The defendant further stated that on May 8, 1979 he applied for inspection of the file but was informed by the Record Keeper that the record of the case had been destroyed by the fire in the Record Room. Thereafter, on May 14, 1979, he filed an application for setting aside that ex parte decree.

3. As already stated, Smt S. Narayan Kakkar, learned Assistant Collector 1st Class, set aside the ex parte order and decree on March 6, 1980 and the revision filed by the plaintiff against that order was dismissed on November 1, 1980 Shri G. Bahadur, learned Additional Commissioner.

4. I have seen the order of Smt. S. Narayan Kakkar, learned Assistant Collector 1st Class, who has dealt with the case in its entirety and has given very good reasons for setting aside the ex parte decree. She has considered the facts that the plaintiff Irshad Ahmad had filed a case under Section 33/39 of the U.P. Land Revenue Act, for expunction of the name of Sohan Lal defendant, but his application was dismissed by the Tahsildar on November 22, 1971. Then, Irshad Ahmad plaintiff filed a suit under Section 209 of the U.P. Z.A. and L.R. Act in respect of the same land, but it was again dismissed on March 29, 1976. Thereafter Irshad Ahmad filed the present suit under Section 209 of the U.P. Z.A. and L.R. Act, which was decreed ex parte on February 1, 1978. The defendant Sohan Lal has stated that he was not served with any summons and he had no notice of the suit or the decree. In view of the fact that from 1971 Irshad Ahmad was trying to get the name of Sohan Lal expunged from revenue records without success, it cannot be presumed that Sohan Lal was indifferent to these proceedings or was not interested in the land in suit. On the other hand, the presumption would he that Sohan Lal had contested the case under Section 33/39 of the U.P. Land Revenue Act and had also contested the case under Section 209 of the U.P. Z.A. and L.R. Act and that is why the said case and the suit had been dismissed. As records of the case have been burnt in a fire accident, it is not possible to know exactly as to what happened and whether in the present suit under Section 209 of the U.P. Z.A. and L.R. Act Sohan Lal was actually served or not. However, a presumption should be made that it was wholly unnatural for Sohan Lal not to enter appearance and contest the suit under Section 209 of the U.P. Z.A. and L.R. Act had he any inkling of the pendency of the suit under Section 209 of the U.P. Z.A. and L.R, Act.

5. The learned counsel for the revisionist has drawn my attention to Dakhalnama issued in this case under Section 209 of the U.P. Z.A. and L.R. Act showing that Smt. Sadiqa Bibi mother of the plaintiff Irshad Ahmad took dakhal on June 1, 1978, on the basis of this document, it has been argued that it must be presumed that Sohan Lal had at least got notice of the case and the ex parte decree against him on June 1, 1978 on which date dakhal was taken by Smt. Sadiqa Bibi. The plaintiff, Irshad Ahmad, himself had alleged in his objection against the application of the defendant that his mother Smt. Sadiqa Bibi had been won over by the defendant Sohan Lal. This fact speaks co