RAJA RAM (DECD.) THROUGH L.RS. Vs. RAMKALI

JUDGEMENT

(1.) This is a second appeal under Sec. 331 (4) of the U.P.Z.A. and L.R. Act preferred against the judgment and decree, dated 19.2.1998, passed by the learned Additional Commissioner, Moradabad Division. Moradabad, arising out of the judgment and decree dated 18.6.1997, passed by the learned trial court, in a suit under Sec. 229B of the U.P.Z.A. and L.R. Act.

(2.) Brief and relevant facts of the case are that the plaintiff, Raja Ram instituted a suit under Sec. 229B of the U.P.Z.A. and L.R. Act, with the prayer that he be declared bhumidhar, in possession, over the disputed holding, as detailed at the foot of the plaint and the defendant No. 1 has no concern with the suit land. The learned trial court, after completing the requisite trial, dismissed the aforesaid suit on 18.6.1997. Aggrieved by this order, an appeal was preferred. The learned Additional Commissioner has upheld the aforesaid order, passed by the learned trial court and dismissed the appeal, too on 19.2.1998. Hence this second appeal.

(3.) I have heard the learned counsel for the parties and have also perused the records, on file. For the appellant, it was contended that the learned courts below have not discussed and considered the oral evidence, adduced by the parties and relied upon the khatauni entries which stood rebutted; that none of the learned courts below have recorded any finding, with regard to the possession of the parties, over the disputed holding and, as such, the judgment and decrees, passed by the learned court below, stood vitiated; that the appellant has got his abadi and residential house over the disputed land but the learned courts below have completely ignored this fact that the land in question is in the form of abadi and as such, the suit was not barred by Sec. 49 of the U.P.C.H. Act; that the alleged order, dated 28.1.1958, passed in a mutation case, was not binding in the regular suit under Sec. 229B of the U.P.Z.A. and L.R. Act; that the finding recorded by the learned courts below is quite perverse, erroneous and contrary to the provisions of law. In reply, the learned counsel for the respondents submitted that the judgment and decrees, passed by the learned courts below are quite. Just and proper which must be maintained, as the learned courts below have properly considered the facts as well as evidence on record and as such, there is no justification to interfere with the impugned orders, passed by the learned courts below.