ZUBULNISA Vs. FAKHRUL ISLAM

JUDGEMENT

(1.) THIS is a second appeal under Section 331 of the UPZA & LR Act (hereinafter referred to as the Act), preferred against the judgment and decree, dated 29-3-1990, passed by the learned Additional Commissioner, Moradabad Division, Moradabad in Appeal No. 63 of 1988-89, arising out of the judgment and decree, dated 17-2-1989, 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 instant second appeal, are that Smt. Zubulnisa, plaintiff instituted a suit under Section 299-B of the Act against Fakhrul Islam, defendant, impleading the Gaon Sabha, concerned and the State of U.P., for declaration of her rights as bhumidhar, over the land in dispute, as detailed in the plaint, and for recording her name, accordingly, in the revenue papers, with the allegations inter-alia that Smt. Shfiqa Khatoon, the real and original tenure-holder in possession of the land in dispute, executed a registered sale deed in favour of the plaintiff on 6-4-1983, in pursuance of which she came in possession of the same; that her mutation application on the basis of the aforesaid sale deed was rejected by the naib- tehsildar; that during the pendency of this multation application, Fakhrul Islam moved an application for muation of his name on the basis of a fictitious will-deed and obtained mutation in his favour, vide order, dated 28-11-1984. The cause of action arose when the mutation application of the plaintiff was rejected in view of the order, dated 28-11-84 in favour of the defendant No. 1. The defendant contested the suit and filed his written statement, denying the allegations and pleading inter-alia that Smt. Shafiqa Khatoon executed a will-deed in his favour during her life-time and the plaintiff has no concern with the land, in dispute. It was also alleged that the heirs of Smt. Shafiqa Khatoon have not been impleaded in the array of parties to the suit since she has died. On the pleadings of the parties, the learned trial Court framed six issues and after considering the entire material, on record, came to the conclusion that the plaintiff has failed to prove the sale deed, executed in her favour and dismissed the suit on 17-2-1989. An appeal preferred, against this order, has also been dismissed by the learned Additional Commissioner vide his order dated 29-3-1990. It is against this order that the instant second appeal has been preferred by the plaintiff before the Board.

(3.) I have carefully and closely examined the contentions, raised before me by the learned counsel for the appellant and the relevant records, on file. The learned trial Court after completing the requisite trial, has observed that the plaintiff has failed to prove the sale deed, executed in her favour as the two witnesses to the sale deed, were her brother and husband and there is no independent witness to it; that the evidence of the scribe was a must for proving a sale deed which is lacking in this case; that no mutation application was moved during the lifetime of Smt. Shafiqa Khatoon; that there is no signatures of the scribe on the sale deed and, therefore, came to the conclusion that Smt. Shafiqa Khatoon did not execute any sale deed, in favour of the plaintiff. In respect of the possession, the learned trial Court decided this issue in negative. So far as non-joinder of necessary party is concerned, it observed that Zahirul Islam was a necessary party and the suit was bad for non- joinder, since the plaintiff has failed to array him as a party, to the suit. On the other hand, it found the Defendant No. 1, Fakhrul Islam in possession of the land, in dispute and the will- deed executed in his favour proved on the basis of the oral evidence of the marginal witnesses and therefore, dismissed the suit of the plaintiff. The learned lower appellate Court has concurred with the findings, recorded by the learned trial Court and dismissed the appeal, preferred by the plaintiff.