MUKHTAR Vs. MOMINA KHATOON

JUDGEMENT

(1.) THIS is a defendant'.s second appeal under Section 331, 4 of the UPZA & LR Act (here in after referred to as the Act) preferred against the judgment and decree dated 9-8-1998, passed by the learned Additional Commissioner. Moradahad Division, Moradabad, in Appeal No. 44 of 1997-98/JP, Nagar arising out of the judg­ment and decree, dated 16-3-1998,, passed by the learned trial Court, in a suit under Section 229-B of the Act.

(2.) BRIEFLY stated, the facts giving rise to the present second appeal arc that Mst. Momina Khatoon, plaintiff instituted a suit under Section 229-B of the Act for declaration of her rights over the land in dispute, as detailed at the fool of the plaint, against the defendants. It was pleaded that the plaintiff is the widow of Roop Hasan son of Muradi, the original tenure-holder who died on 11-8-1986. Roop Hasan died issucless in 1985 and so she is the sole successor in law. She claimed ownership and possession of the land, in dispute and prayed for a declaration of her rights over .1 he land in dispute. Cause of action arose when Mallu and others, defendants got their names mutated upon the land in dis­pute on the basis of a" Will, dated 19-8-1986, said to have been executed by Muradi. The defendants contested the ease by filing their written statements. The learned trial Court after completing the requisite trial decreed the suit of the plaintiff on 16-3-1998, holding the alleged Will, dated 19-8-1986, to be forged and fictitious. Aggrieved by this order and decree, an appeal was preferred by the defendant. The learned Additional Com­missioner by her order and decree, dated 19-8-1998, 'dismissed the appeal. It is against this judgment and decree that the present second appeal has been preferred by the defendants, Kukhtar etc. before the Board.

(3.) I have carefully and closely ex­amined the submissions made before rue. by the learned Counsel for the parties and the relevant records on file. A bare perusal of the record clearly reveals that on the pleadings of the parties concerned, on 13-5-19921 the learned trial Court framed nine issues. It has, however, on 17-8-1992 framed live additional issues,- including issue No. 2 to the effect whether Minadi, deceased executed a will in favour of the defendants 1 (o 6 or not and its effect. The learned trial Court after analysing, dis­cussing and considering the material and relevant facts and circumstances of the instant case as well as the evidence on record came to the conclusion that since the deceased, Muradi died on 11-8-1986 and the alleged will is said to have been executed on"19-8-1986 i.e. after the death of Muradi, deceased, in favour of the defendants 1 to 6, its execution is rather impossible and decided this issue in prime live. In respect of the .status of the plaintiff it is of the opinion that .the plaintiffu Momina Khatoon is the only claimant and successor of the deceased, Muradi, the original tenure-holder. The alleged will has been categorised as forged and fabricated document by the learned trial Court. With the aforesaid findings, the learned trial Court decreed the suit of the plaintiff, holding her to be the rightful claimant and heir/successor of the deceased, Muradi, being his daughter-in-law. The learned Additional Commis­sioner has concurred with the findings, recorded by the learned trial Court and dismissed the appeal of the defendant-ap­pellants. She has analysed, discussed and considered the relevant and material aspects of the instant case in correct perspective of law. I entirely agree with the findings, recorded by the learned two Courts below. No error of law, fact of jurisdiction has been committed by them, in decreeing the suit of the plaintiff. The concurrent finding of fact recorded by both the Court below cannot he upset at this second appellate stage as the same have been arrived at after due and proper ap­praisal of evidence on record, keeping all the relevant and material facts and cir­cumstances of the instant case in view. Moreover, no substantial question of law is involved in this second appeal, which may call for any interference with the decision, in the present I case.