SHAMSUDDIN/MUSTAFA KHAN ETC. Vs. MUSTAFA KHAN/SHAMSUDDIN

JUDGEMENT

(1.) THESE are two connected second under Section 331 of the UPZA & LR Act (hereinafter referred to as the Act), preferred against the judgment and decree dated 29-6-1996, passed by the learned Additional Commissioner, Jhansi Division, Jhansi in Appeal No. 48/60 of 1993-94 Banda, allowing the same in part and modifying the judgment and decree dated 25-4-1994 passed by the learned Court, accordingly, in a suit under Section 229-B/176 of the Act.

(2.) BRIEFLY stated, the facts giving rise to the instant second appeals are that the plaintiff, Babu Khan instituted a suit under Section 229-B/176 of the Act against the U.P. State, Gaon Sabha and the Defendant No. 3, Qamaruddin, for a declaration to the effect that since the land in dispute was acquired by Mst. Mamman, the plaintiff is her heir and for correction of entries accordingly, expunging the name of the Defendant No. 3 who has nothing to the with the same, inter-alia, pleading that the plaintiff and the Defendant No. 3 are off-springs of Radha Ram, that after the death of Mst. Mamman, who was a prostitute and had acquired Plot Nos. 2674, 8434 and 2760 which was given to her by Bindeshwari during her dance-recital and was in her possession since before 1-4-1954 during the lifetime of the donor, the plaintff remained in possession of the same and the Defendant No. 3 was nothing to do with it nor was he ever remained in possession of the same, that the land in dispute is not acquired by Defendant No. 3 or Tajju, his father, who was a helper of Mst. Mamman and therefore, they are not entitled to the benefit of Section 171 of the Act for heirship; that the Defendant No. 3 who was a cunning fellow, got his name fraudulently recorded over the land, in dispute in collusion with the revenue functionaries; that taking advantage of the minority of the plaintiff, the Defendant No. 3 and his father got the minjumla number of the land in dispute, fraudulently created and after the death of Mst. Mamman, Plot Nos. 2708, 2905, 2779, 2663, 2726 and 2778 undergone divisions of holding in which the plaintiff got full Plot Nos. 2708, 5705 and 2729 and since the Defendant No. 3 fraudulently got the minjumla numbers of the plots in dispute created in the revenue records, the cause of action arose as the plaintiff had planted a grove 30 years ago in Plot No. 2708 with which the Defendant No. 3 has no concern at all and correction of entries in the revenue records accordingly is necessary. On notice, the defendant, contested the suit, denying the allegations and inter-alia, pleading that Khasra Nos. 53 and 35 are the sole acquisition of his father which, after whose death, is in his possession and the plaintiff has nothing to do with it; that Khata No. 54 and Plot No. 2708, he and the plaintiff is in joint possession of their respective half share; that his father got Plot No. 2761 on lease from the then zamindar with which the plaintiff has no concern whatsover and that the suit of the plaintiff deserves dismissal, as the same is not maintainable in law. The learned trial Court, after completing the requisite trial, dismissed the suit of the plaintiff, ordering correction of the entries in revenue records, vide its judgment and decree dated 15-4-1994 against which the plaintiff went up in appeal before the learned Additional Commissioner, who has partly allowed the same, vide judgment and decree dated 29-6-1996 and therefore, it is against this judgment and decree that the instant cross second appeals have been preferred by the heirs of the plaintiff and Defendant No. 3 before the Board.

(3.) I have closely and carefully considered the arguments, advanced before me by the learned Counsel for the parties and have also scanned the record on file. A bare perusal of the record on file clearly reveals that the learned trial Court has rejected the claim of the plaintiff as he failed to adduce evidence in his favour to prove that he is the bhumidhar with transferable rights of the land in dispute of village Badausa while in respect of village Bhusali, it has observed that in the Khatauni 1362F, the name of Tajju is recorded by the order dated 8-2-1955 passed by the learned SDO which is still continuing. The learned Additional Commissioner, to the contrary, has observed that the panchayatnama which is 40 years old is proved from the evidence on record which was never challenged by Qamaruddin and the parties are in possession accordingly and therefore, in these circumstances, the plaintiff cannot be deprived of this part of the land in dispute, comprising Plot Nos. 2779, 5905, 2708 1/2 portion of Plots 2778 towards south and as such this panchayatnama is binding upon the parties concerned. He has accepted the views, expressed by the learned trial Court in respect of Khata Nos. 335 and 53. In respect of Khata No. 35, the claim of the plaintiff is not proved as he has no where been recorded in the revenue records during the period of zamindari or thereafter while that of the defendant is proved from the revenue records. The learned Additional Commissioner, has dealt with the matter in question through and through at length in an analytical and logical manner. The finding recorded by him have been arrived at after due and proper appreciation of evidence on record as well as in correct perspective of law and since the same are very reasonable, I entirely agree with the same and therefore, the contentions raised by the learned Counsel for the appellant who has miserably raised to substantiate his claim, are the untenable for the same reason. No illegality or material irregularity has been committed by him in the exercise of jurisdiction and therefore, the learned Additional Commissioner, was perfectly justified in rendering the impugned judgment and decree, while the learned trial Court has rather swayed away on flimsy grounds and has not dealt with the matter in question in correct perspective of law and therefore, these second appeals having no force, very richly deserves dismissal outright as nothing remains to be decided and no substantial question of law is rather involved in the same.