OMWATI Vs. SHISHRAM

JUDGEMENT

(1.) THIS is a second appeal preferred against the judg­ment and decree dated 11-6-1993 passed by the learned Additional Commissioner, Moradabad Division, Moradabad, arising out of the judgment and decree dated 11-11-1992 passed by the learned trial Court in a suit under Section 229-B of U.P.Z. A. and L.R. Act.

(2.) BRIEF and relevant facts of the case are that the plaintiff one Smt. Omwati w/o. Jagram Singh instituted a suit under Sec­tion 229-B of U.P.Z.A. and L.R. Act against the defendants, Shishram and others with the prayer that she be declare the sole bhumidhar with transferable rights in pos­session over the disputed land as detailed at the foot of the plaint, with the allega­tions that on 17-11-1982 a registered Will has been executed in her favour by the deceased Sheoraj Singh. The learned trial Court after completing the requisite trial, decreed the suit of the plaintiff, on 11-11-1992. Aggrieved by this order an appeal was preferred. The learned Additional Commissioner by means of his order dated 11-6-1993 allowed the appeal and set aside the order dated 11-11-1992 passed by the learned trial Court; hence this second ap­peal,

(3.) FOR the appellant it was contended that the plaintiff-appellant is the grand­daughter of deceased Sheoraj Singh, the last male tenure-holder, who has validly executed a registered Will in her favour on 17-11-1982, that the findings given by the learned trial Court are perfectly in accord­ance with the evidence on record; but the learned lower appellate Court has com­mitted a gross illegality in reversing the same without holding the Will to be forged and fictitious, that the learned Additional Commissioner has reversed the aforesaid order passed by the learned trial Court on surmises and conjectures and without cogent reasons has rejected the aforesaid Will which has been lawfully and validly executed in favour of the plaintiff-appel­lant that the marginal witnesses have proved the aforesaid Will and possession of the plaintiff- appellant over the dis­puted holding, that no notice under Sec­tion 106, of U.P. Panchayat Raj Act, is necessary to Gaon Sabha concerned in view of the case law reported in 1980 RD 279. It has been further urged that no notice to the State Government was neces­sary under Section 80, CPC as in previous suit the said notice has been sent to the State Government but no written state­ment was filed on behalf of the U.P. State or by the Gaon Sabha concerned and no objection either by the U.P. State or by the Gaon Sabha concerned was filed before the Courts below, that neither any relief has been claimed by the State nor any plea has been taken before the learned Courts below in this regard. It was further con­tended that suit is not barred by Section 34 of Specific Relief Act and it is proved beyond doubt that the plaintiff-appellant, Smt. Omwati is the grand-daughter of deceased Sheoraj Singh, that the learned Additional Commissioner has pointed out only the technical points which have no material significance upon the matter in question, that the aforesaid Will has been duly proved according to law and was rightly accepted by the learned trial Court; but the learned lower appellate Court has erroneously rejected the aforesaid Will and has dismissed the appeal as such the same be allowed and the judgment and decree passed by the learned trial Court be restored. In support of his contentions he has cited the case-law reported in 1980 RD 279, 1990 RD 248 and 1980 RD 164. In reply, the learned counsel for the respondents submitted that the plaintiff-appellant should have established its case that neither the notice under Section 80, CPC was issued to the U.P. State nor to the Gaon Sabha concerned under Section 106. of U.P. Panchayat Raj Act, before filing the aforesaid suit, that the aforesaid notices were nor served upon the U.P. State and Gaon Sabha concerned while it was man­datory to give the aforesaid notice to the U.P. State and the Gaon Sabha concerned, as such, the aforesaid suit is defective and non-maintainable, that the aforesaid Will is not genuine and lawful, that the aforesaid suit is barred by Section 34 of Specific Relief Act, that the learned trial Court has not properly examined the mat­ter in question that is why the learned lower appellate Court has reversed its finding, that the aforesaid Will has not been properly proved by the marginal wit­nesses who are not independent one, that the finding recorded by the learned lower appellate Court is quite just and proper which must be maintained as the several contradictions nave been found in the statements of marginal witnesses produced by the plaintiff-appellant. In support of his contentions he has cited the case-laws reported in 1995 RD 46 (HC), 19"9 RD 295 (HC), 1998 RD 390, 1996 AWC157.