RAM SWAROOP Vs. GAJRAM

JUDGEMENT

(1.) THIS is 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 27-121-1995, passed by the learned Additional Commissioner, Moradabad Division, Moradabad, arising out of the judgment and decree, dated 26-4-1994, 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 are that the plaintiff-respondent, Gajram instituted a suit under Section 229-B of the Act against the defendants, Ram Swaroop and others, for declaration of his Bhumidhari rights, over the land, in dispute, on the basis of being heir and legal representative of Smt. Raniya. It was further prayed that the names of defendants 1 to 9, who have no concern with the land, in dispute, be ex­punged from the revenue records and that of the plaintiff be recorded as the sole tenant. Defendants contested the suit and filed their written Statements. On the pleadings of the parties, nine issued were framed. Issue No. 4 was to the effect whether the suit is barred by Section 106 of the Panchayat Raj Act and issue No. 7 was to the effect whether the Will executed by Ram Sukh in favour of Smt. Raniya was illegal and fake. There after, on an applica­tion, dated 18-1-1994, moved by the defen­dants, the learned trial Court, after hear­ing both the parties, by means of its order, dated 26-4-1 994, decided both these issues as preliminary issues, deciding issue No. 4 in favour of the plaintiff and issue No. 7 against him and dismissed the suit under Order VII, Rule 11 CPC. Aggrieved by this order, an appeal was preferred. The learned Additional Commissioner al­lowed the appeal, set aside the order passed by the learned trial Court and remanded the case to it for decision, afresh, on all the issues, except issue No. 4, on merits, after affording an opportunity of being heard and adducing evidence to both the parties, there by upholding the findings of the learned trial Court on issue No. 4. It is against this order that this second appeal has been preferred before the Board.

(3.) I have closely and carefully con­sidered the contentions, raised before me by the learned Counsel for the parties and have also gone through the relevant records on file. A bare perusal of the record reveals that the learned Additional Commissioner has properly and thoroughly analysed, discussed and con­sidered the relevant and material facts and circumstances of the instanl caseand come to the conclusion that ihe whole con-iroversy does not only revolve around the alleged will alone but adverse possession as well. It appears that on the application dated 18-1-1994, moved by the defen­dants, the learned trial Court decided is­sues Nos. 4 and 7 as preliminary issues. It decided issue No. 4 in favour of the plain­tiff and issue No. 7 in favour of the defen­dants and dismissed the suit under Order VII, Rule 11 CPC. In respect of issue No. 7, the learned trial Court came to the con­clusion that since Rampur Tenancy Act was in force, at that time, Ram Sukh was not entitled to execute a Will in favour of Sml. Raniya. Issue No. 7 was whether the alleged will was farzi. The learned Addi­tional Commissioner is of the opinion that this question needs a drastic probe in the matter, which requires further evidence of the parlies concerned, both oral as well as documentary. It has also to be seen as to what rights were provided to a tenant under the Rampur Tenancy Act at that time. Moreover, the correct and effectual decision of this issue requires further evidence of the parties, concerned and as such, this issue cannot be decided as a preliminary issue. I entirely agree with the views, expressed by the learned lower ap­pellate Court, as it did not commit any error of law, fact or jurisdiction in remain­ing the case to the learned trial Court for decision, afresh, on merits on all the issues, except issue No. 4, as it agreed with the conclusion, drawn by the learned trial Court, in respect of this issue and as such, this second appeal, having no force, deser­ves 10 be dismissed and the impugned order passed by the learned Additional Commissioner is liable to be confirmed and maintained.