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The facts of the case  are that the petitioner was recorded  Bhumidhar in possession of  plot no. 64 area 0.08 Hectares situate in village Khandwari, Pargana Mahuari, Tehsil Sakaldiha, District  Chandauli. The application was made by respondent no. 3 for recording area 4-1/2  Decimal as 'Abadi' on the  ground that  she is using  the same by keeping her Mandahi, Charani (Cattle  shed) and Chak etc. since before 3.6.1995.  She is 'Kumhar' by caste and has got her house beside the land in dispute, therefore the area 4-1/2 Decimal of plot no. 64 which is being used by her for  her cattle shed, chak etc.  be recorded in her name as her 'Abadi' under Section 123(2) of the  Act. The application of the respondent no. 3 has been brought on record.  On the said application, the record was called for and Lekhpal, Revenue Inspector submitted reports dated 4.7.1996 that the disputed land was being  used by respondent no. 3 as appurtenant land of her house and  she is doing work of making earthen pots through Chak etc. in the  Mandahi built  over the disputed land which was not being used for housing purpose. However, the Tehsildar in his one line report dated 4.7.1996 stated that  the respondent no. 3  could be given benefit   of village artisan under Section 123(2) of the  Act.  On the report of the  Tehsildar dated 4.7.1996, one word order 'Sweekrit' was passed by the  Up Ziladhikari(Sub Divisional Magistrate).

Learned counsel for the petitioner submits that in the revision filed before the Commissioner, the grounds were taken that respondent no. 3  had no concern over the disputed land and her house exists  at the  southern side of the disputed land and not on the disputed land. In any case, the land could not be recorded as 'Abadi' at the instance of respondent no.3 as there was  no construction over the same.  It was further contended that there is no report  so as to  give benefit of Section 123(2) of the Act to the respondent no. 3  and the order had been  passed without any information/intimation to the petitioner. The revisonal court did not consider the objections  raised by the petitioner and dismissed the revision that as per the report  of the Lekhpal, Revenue  Inspector and Naib  Tehsidar that respondent no. 3  was in possession of disputed land and therefore the order passed under Section 123(2) of the  Act taking into consideration of the  preferential category given under Section 122-C(3) of the  Act required no interference. While  concluding the argument learned counsel for the petitioner submitted that mere keeping  Mandahi, cattle shed and chak on the disputed land of the petitioner  do not confer any right upon the respondent no. 3.  The benefit of Section 123(2) of the  Act  can be given only to a person  referred to in sub-section (3) of Section 122-C of the Act who has built a house  on the land of the tenure holder.

Admittedly, the house  of the respondent  no. 3  does not exist over the land of the petitioner and keeping  of Mandahi etc.  will not  amount  to building of the house. From the report  of Lekhpal and Revenue  Inspector dated 4.7.1996 it appears that respondent no. 3  at the best is using the land  as appurtenant land for the purpose  which are not covered under  Section 123(2) of the  Act. There is no question of  adverse possession over the land of the petitioner  and no right can be conferred to her.  The order passed by the  Up Ziladhikari is non-speaking order without giving any opportunity of hearing to the petitioner  who is admittedly recorded Bhumidhar of the disputed plot.

In the rejoinder affidavit, learned counsel for the  petitioner submits that the suit filed by the respondent no. 3  is being contested by the heirs of petitioner and the temporary injunction was granted on incorrect facts  given by the  respondent no. 3.

Having  heard learned counsel for the parties and perused the record, it is apparent that  before  passing  the order dated 18.7.1996 no proper enquiry was conducted by the Up Ziladhikari.  The report of the Tehsildar is only  one line report recommending for benefit under  Section 123(2) of the  Act to the respondent no. 3  being  the landless village artisan. Indisputably the house of respondent no.3 exists at the  southern side of the disputed land.  The report of the Lekhpal and Revenue  Inspector dated 4.7.1996 further substantiate the fact that no house  has been built by the respondent no. 3  over the  disputed land  i.e. plot no. 64 area 4-1/2 Decimal.  The land  was being used by the respondent no. 3 for the purposes other than that is provided under  Section 123(2) of the  Act.  At this stage reference may be made to  Section 123(2) of the  Act which is quoted below:-