NAGAR PALIKA Vs. RAM LAL

JUDGEMENT

(1.) THESE are two cases one second appeal under Section 331 of the UPZA and LR Act ( here in after referred to as the Act) preferred against the judgment and decree dated 16-3-1998 passed by the learned Additional Commis­sioner, Moradabad Division, Moradabad arising out of judgment and decree dated 18-12-1996 passed by the learned trial Court in a suit under Section 229-B/209 of the Act and one revision petition preferred against the order dated 18-9-1998 passed by the learned Additional Commissioner, Moradabad Division, Moradabad in respect of an application for impleadment moved on behalf of the District Panchayat, Moradabad in the first appeal before the learned Additional Commissioner. Since the matter involved in the aforesaid two cases are similar, the same are being dis­posed of by t his common judgment.

(2.) BRIEF and relevant facts of the case are that Nagar Palika, Chandausi, Moradabad instituted a suit under Section 229-B/209 of the Act with the prayer that the U.P. state and Nagar Palika Chan­dausi, Moradabad be recorded as manager over the suit plot No. 177-Kha, admeasur­ing 0.90 acre which is a U.P. Slate property and in the management of the Nagar Palika, Chandausi, Moradabad if any encroachments found over the disputed land the same may be delivered in possession of the plaintiff. The learned trial Court after completing the requisite trial has dismissed the aforesaid suit on 18-12-1996. Aggrieved by this order an appeal was preferred before the learned addition­al Commissioner. During the pendency of this appeal an application for implead­ment was moved before the learned lower appellate Court on behalf of the District Panchayat, Moradabad. This application was rejected on 18-9-1998 by the learned Additional Commissioner. It is against this order that the aforesaid revision peti­tion has been preferred. By means of its judgment and order dated 16-3-1998 the learned lower appellate Court dismissed the aforesaid appeal. Hence this second appeal.

(3.) IN reply the learned Counsel for the respondents submitted that this second appeal is not maintainable as neither any substantial question of law is involved herein nor has the same been framed in the memorandum of the second appeal; that plot No. 192/1 admeasuring 1.57 acres was recorded as SADAK and plot No. 192/3 admeasuring 0.90 acre was recorded in the name of Chanda s/o Manguli ; that Ram Lal and Raja Ram sons of the aforesaid Chanda have sold this plot No. 192/2 ad­measuring 0.90 acre to the defendant-respondents 3 to 6 by means of a registered sale-deed dated 26-7-1991 and at present this plot is recorded in their names who are the owners in possession of this land in suit as bhumidhar; that the land admeasuring 0.90 acre continued to be recorded since 1347-F (1939-40) in the name of Chanda sons of Mangoli till this lifetime and after the death of Chanda, his sons Ram Lal and Raja Ram were mutated upon and there after a sale deed dated 26-7-1991 was ex­ecuted by Ram Lal and Raja Ram in favour of the respondents 3 to 6 who became its owner and are recorded as such in the revenue records; thalaftertheabolitionof Zamindari in 1952, Chanda s/o Mangoli firstly became sirdar and by the operation of law bhumidhar over the land in suit and alter the death of Chanda, defendants 1 and 2 became its bhumidhar who executed the sale deed in respect of plot No. 177-Kha, admeasuring 0.90 decimal in favour of respondents 3 to 6 on 26-7-1991 and their names have been mutated upon; that in the Khatauni for 1393F filed on behalf of the appellant the plot in suit 192/2 ad­measuring 0.90 decimal has been shown as SADAK ;but this entry is with out ATany order of the competent authority ; that there is nothing on the record to show as to how this plot has been included in SADAK which was previously recorded as bhumid-hari of the defendant-respondents ; that the documentary evidence adduced on be­half of the defendant-respondents in­cludes Khatauni for 1347-F, 1356-F, 1359-F, CH-40 (1363F), CH-41, Khatauni 1402 to 1406F and other documents which clearly prove the possession of the respon­dents over the disputed land; that the suit was manifestly barred by Section 27/49 of the U.P. Consolidation of Holdings Act and accordingly, the suit was rightly dis­missed by the learned trial Court; that the learned trial Court as well as the learned first appellate v court have discussed, con­sidered and analysed the entire facts and circumstances of the case in detail and the aforesaid impugned orders have been rendered by the learned Courts below in accordance with law; that the principle of resjudicata shall not be applicable to the present case as the issue involved in the earlier suit decided suit must be directly and substantially involved in the pending suit and the issue decided in the earlier suit must be heard and finally decided ; that in the earlier order of the Board in reference No. 21 of 1987-88, absolutely no issue had been decided, rather in view of the prayer of the respondents 1 and 2, the reference was accepted setting aside the order dated 15-9-1987 passed against the defendant-respondents and as such no principle ofres judicata shall apply in case the judgment and order are given/passed on account of technical defect e.g. non-joinder/mis-joinder of necessary parties ; that in the aforesaid reference, the Board set aside the order dated 15-9-1987 passed by the learned trial Court against the defendants Ram Lal and Raja Ram ; that even if the principle of res judicaia applies in that event it shall apply in favour of the defen­dant-respondents inas much as the effect of setting aside of the aforesaid order dated 15-9-1987 would be the restoration of the ex pane decree dated 30-7-1987 passed by the learned trial Court in favour of the defendant-respondents ; that the learned Courts below have recorded con­current finding of fact and the same cannot be upset at this second appellate stage with out ATany valid ground; that the plaintiff-appellant should prove its own case and it cannot rely upon the weaknesses of the defendants. In supportof his contentions, he has relied upon the case laws reported in 1999 RD180 (SC), 1988 RD 623 (SC), 1997 RD 467 (HC), 1998 RD 636 and 784 (HC), 1996 SCC 735, AIR 1989 SC 2240 at pages 2248 and 2249 and 1983 ALJ 509.