SMT. VEDWATI Vs. RAJVIR

JUDGEMENT

(1.) This is defendants second appeal against the judgement and decree dated 29-11-1990 passed by Sri Yuvraj Singh Ken, Additional Commissioner, Moradabad Division, Moradabad in appeal No, 56 of 1989-90 arising out of the judgement and decree dated 30-4-1990 passed by Sri Ravindra Nath Tewari, S. D.O. Wajibabad, district Bijnor in a suit under Sec. 229-B of the U. P Zamindari Abolition and Land Reforms Act.

(2.) The facts of the case are that Rajvir Singh filed a declaratory suit under Sec. 229-B of the Act against Smt. Vedwati (hereinafter referred to as the appellant) setting forth his case that he was entitled to 1/2 share with transferable rights in plot No. 28/17-0-8 situate in village Harnathpur. Pergana and Tehsil Najibacad. This land was recorded in the name of Sukhram son of Nattha and Balram s/o Juhara, in the year 1388-92F. The allegation goes on that Sukhram executed a will in respect of his share in favour of the plaintiff Rajvir Singh in the face of an objection made by Jhabrey s/o Nattha Jhabrey subsequently accepted the will through a compromise as a consequence of this, an order was passed for expunging the name of the deceased Sukhram and recording the name of the plaintiff. But the name of Jhabrey was not expunged. Jhabrey executed a sale deed of his share in favour of the defendant Smt. Vedwati, wife of Balram. This gave rise to cause of action and filing of the suit for declaration of the plaintiffs co-tenancy along with the defendant No 2 Manoj Kumar. Smt. Vedwati contested the suit and filed written statement on 23-1-1989 pleading that the suit was barred by the principle of res judicata because no suit was filed in the lifetime of Jhabrey and that she was in possession over the land in dispute on the strength of a registered sale deed executed by Jhabrey. On the pleadings of the parties, the learned trial court framed 8 issues and decreed the suit. Aggrieved by this order, the defendant Smt Vedwati went in appeal before the Divisional Commissioner. The learned Additional Commissioner dismissed the appeal on 29-11-1990. Hence this second appeal.

(3.) I have heard the learned counsel for the parties. Sri D. V. Jaiswal, learned counsel for the appellant has made four submissions. His first submission is that the plaintiff did not file any will and the suit was liable to be dismissed in the absence of the will. His second submission is that the can sent in the mutation case which is summary in nature, is not binding on the defendant. Reliance has been placed on 1979 RD 152 : 1984 RR 378 : 1982 RR Vol I 82 : 1976 RD Vol. II 185 and 183 WC 284. His third submission is that the suit was not maintainable because no application for appointment of guardian under Order XXXII was made. His last submission is that the suit is barred by Sec. 34 Specific Relief Act because the suit has been for declaration but there is no prayer for possession. The trial court has held that the plaintiff is in possession. The finding has not been upset by the learned Additional Commissioner. Reliance has been placed on 1972 RD 25 J (SC). Sri S. N. Singh, learned counsel for the respondent makes five submission. His first submission is that there is no question of taking possession because Jhabrey was recorded as co-tenant and the possession of one co-tenant is the possession of all. His second submission is that Jhabrey had no right to execute a sale deed. His third submission is that the compromise was moved by the appellant. At that time, the will was not disputed and so there is no question of any proof. According to Sri Singh, if the admission is on fact in mutation proceedings in respect of title, the admission will be binding. Reliance has been placed on 1979 AWC 299 and 302. His fourth submission is that it was not at all necessary for the appointment of guardian of Manoj because Smt. Vedwati was his natural guardian, and no relief was sought against Manoj. His last submission is that the concurrent findings given by the courts below are not to be disturbed in this second appeal.