NAND KISHORE ETC. Vs. SWAMIDIN ETC.

JUDGEMENT

(1.) THIS is a second appeal under Section 331 (4) of the UPZA and LR Act (hereinafter referred to as the Act), preferred against the judgment and decree dated 30-12-1994, passed by the learned Additional Commissioner, Jhansi Division, Jhansi, in Appeal No. 38/117 of 1992-93/Hamirpur, allowing the same, setting aside the order, dated 31-3-1993, passed in a suit under Section 176 of the Act and remanding the case to it for decision afresh as per the observations made by him.

(2.) BRIEFLY stated, the facts giving rise to the instant second appeal are that in a suit under Section 176 of the Act instituted by Swamidin and another for division of holding in question, the preliminary decree was passed by the learned trial Court on 25-6-1990 and the lekhpal, concerned was directed to submit lots accordingly on the basis of valuation, which would be given to the parties, concerned on the basis of lottery, vide, its order, dated 7-1-1993, fixing 23-1-1993. This order was subsequently confirmed vide order, dated 20-3-1993. An application was moved for setting aside the order, dated 7-1-1998 which was rejected, vide order, dated 31-3-1993, thereby confirming the same against which Nand Kishore etc. went up in first appeal before the learned Additional Commissioner, who has, vide his order dated 30-12-1994, allowed the same and ordered the learned trial Court for the preparation of the lots on the basis of the mutual consent of the parties, concerned and therefore, it is against this order that the instant second appeal has been preferred by Nand Kishore etc. before the Board.

(3.) I have closely and carefully considered the arguments, advanced before me by the learned Counsel for the appellant and have also scanned the record on file. A bare perusal of the preliminary judgment and decree clearly reveals that the shares of the parties, concerned are not equal. The learned Additional Commissioner has observed that since the shares of the parties, concerned are not equal, the allotment of lot cannot be made on the basis of lottery. It is true that had the shares been equal, the allotment of lot on the basis of lottery is not possible and therefore, the learned Additional Commissioner was perfectly justified in remanding the case to the learned trial Court. He is also correctly observed that since under Section 176 of the Act, only an appeal is provided against the judgment, passed by the learned trial Court, the first appeal, in question, was maintainable. The learned Additional Commissioner has dealt with the matter in question in an analytical and logical manner in right perspective of law and therefore, he is perfectly justified in ordering the allotment of lots on the basis of the consent of the parties, concerned after hearing them and as such, I also concur with the views, expressed by him. The matter, in question, has rightly been remanded to the learned trial Court for decision afresh, accordingly and no illegality or material irregularity in the exercise of jurisdiction has either been committed by him and therefore, this second appeal, having no force, very richly deserves dismissed outright. The contentions of the learned Counsel for the appellant who has miserably failed to substantiate his claim, are rather untenable for the same reason.