SULTAN HUSAIN Vs. SMT MUKHIYA

JUDGEMENT

(1.) This is plaintiffs second appeal against the judgement and decree dated 5-2-1987 passed by Sri Ganesh Datt, Additional Commissioner, Moradabad Division, Moradabad dismissing the appeal arising out of an order dated 17-7-1980 passed by the Assistant Collector Ist class, Moradabad in a suit under Sections 229-B/209 of the U.P. Zamidari Abolition and Land Reforms Act.

(2.) The facts of the case are that Smt. Asghari Begum wife of Mohd Hussain, mutwalli waqf brought a suit under Sec. 229-B/209 of the Act against Smt. Mukhiya alias Mukkho and Mohammad Hussain with the allegation that Smt. Mukhiya alias Mukkho was wrongly recorded against plot Nos. 160/0.27, 161-ja/0.22 and 167/0.63 situate in village Daulpuri Bamania. The land was fermerly but wrongly recorded in the name of Itwari who was the servant of the plaintiff. The plaintiff is the mutwalli and bhumidhar in cultivatory possession of the land in dispute. A prayer was, therefore, made to declare her bhumidhar and eject the defendant from the land in dispute. Smt. Mukhiya alias Mukkho contested the suit denying the allegations. The defendant No. 2 Mohammad Hussain supported tire plaintiffs case. The suit was also contested by the State. On the pleadings of the parties, the learned trial court formulated 11 issues and dismissed the suit. An appeal preferred against this judgement and decree was also dismissed by the learned Additional Commissioner Hence this second appeal.

(3.) I have heard the learned counsel for the parties. Sri S. M. Abbas, learned counsel for the appellant has contended that the land in dispute is a waqf property. The land was recorded in the name of Mohammad Hussain who created waqf and appointed his wife Smt. Asghari Begum as its mutwalli. The defendant was her servant. In brief, his submissions are that both the courts below have not considered the evidence ; no finding that the land is a waqf property ; Sec. 34, LR. Act will not bar the suit if the name was struck off after 1959 ; no discussion of the testimony of the witnesses. My attention was drawn towards a letter purported to have written by Itwari husband of the defendant, admitting himself to be the servant of the plaintiff. He has also admitted in correction proceedings that he was servant of the plaintiff. In the end, the learned counsel has urged to remand the case for decision afresh. Sri D. V. Jaiswal, learned counsel for the respondent has contended that firstly, the findings of fact concurrent recorded by the courts below cannot be interfered with in this second appeal; secondly, the suit is not maintainable because the waqf Board was not made a party, and thirdly, admission in correction or mutation proceedings are not binding to a regular suit. It was further contended that the plaintiff had withdrawn the suit but filed a fresh suit without permission of the court. There is no order for filing a fresh suit. His last submission is that there is no proof that Itwari was a servant of the plaintiff. In reply, the learned counsel for the appellant has submitted that a finding without discussion of evidence is not a finding of fact and that there was no plea of non-joinder of party. As regards maintainability of the suit, the learned counsel referred to issue No. 10 and maintains that the second suit is set barred.