JHAMMAN/ULFAT RAI Vs. ULFAT RAI/JHAMMAN

JUDGEMENT

(1.) THESE are two cases. One second appeal under Section 331-A and one revision petition under Section 333(1) of the UPZA & LR Act, thereinafter referred to as the Act, preferred against the judgment and decree, dated 30-9-1997, passed by the learned Additional Commissioner, Moradabad Division, Moradabad, in Appeal No. 47 of 1996-97, arising out of the judgment and decree, dated 31-1-1977 passed by the learned trial Court, in Suit No. 4 of 1996-97 under Section 229-B of the Act. Since the facts and circumstances and the points, involved in the instant cases, are similar, the same are being decided by this common judgment. Second Appeal No. 16 of 1997-98/Rampur shall be the leading case.

(2.) BRIEFLY stated, the facts giving raise to the instant second appeal/revision petition are that the plaintiff, Ulfat Rai instituted a suit under Section 229-B of the Act for declaration of his rights as the sole bhumidhar, with transferable rights, over the land, in dispute, as detailed in the plaint, against the defendants, Jhamman etc. with the plea nter-alia that during the consolidation operations, his name was inadvertently committed from being recorded in the revenue records and instead the name of Gendan Lal, father of the defendants, found place. The suit was contested by the defendants, denying the allegations. The learned trial Court, after completing the requisite trial, decreed the suit of the plaintiff and ordered the names of the Defendants 1 and 2 to be expugned from the revenue records, ejecting them from the land in dispute, vide its order, dated 21-1-1997. Aggrieved by this judgment and decree, the defendants went up in appeal. The learned Additional Commissioner vide his order, dated 30-9-1997, allowed the appeal in part, thereby setting aside that portion of the order of the learned trial Court by which the Defendants 1 and 2 were dispossessed and confirming the rest of the portion of the order passed by it. It is against this judgment and decree, that the instant second appeal has been preferred by the defendants and the instant revision petition by the plaintiff before the Board.

(3.) I have closely and carefully considered the arguments, raised before me by the learned counsel for the parties and have also gone through the relevant record, on file. A bare perusal of the record clearly reveals that on the pleadings of the parties, concerned, the learned trial Court framed as many as 11 issues and after recording its findings on each and every issue, has decreed the suit of the plaintiff and also ordered the names of the Defendants 1 and 2 to be expugned from the revenue records as well as their dispossession from the land, in dispute. In first appeal, the learned Additional Commissioner, in his impugned judgment has dealt with only the aspects, relating to notice under Section 80 CPC and dispossession of the defendants. He has, in fact, not recorded his own independent findings issuewise and has also not reversed the findings, recorded by the learned trial Court on each issue. I entirely agree with the contentions, raised by the learned counsel for the parties that the learned Court of first appeal ought to have recorded its own independent findings before partly allowing the appeal. I also notice that in a slip-shod and cursory manner, it has dealt with only two points of the matter, in question. As a matter of fact, all other important issues, involved in the suit remained unanswered. For allowing the appeal, whether wholly or partly, reversal of the findings on each and every issue, recorded by the learned trial Court is necessary and in the absence thereof, the judgment of the appellate Court becomes illegal and perverse and, therefore, the judgment and decree, passed by the learned Additional Commissioner, cannot be catagorised as just and proper and as such, the same cannot be allowed to sustain. In the facts and circumstances of the instant case, to my mind, it is rather a fit case to be remanded to the learned lower appellate Court for decision, afresh (sic) on all the issues involved in the matter, in question, after affording an opportunity to the parties, concerned, of being heard.