- (1.) S. P. Pandey, J. This is a second appeal under Section 331 of UPZA and LR Act preferred against the judg ment and decree dated November 6, 1953 passed by the learned Addl. Commis sioner, Moradabad Division, Moradabad arising out of a judgment and decree dated 1-2-93/3-2-93 passed by the learned trial Court in a suit under Section 229-B of UPZAndlract.
(2.) BRIEF and relevant facts of the case are that the plaintiff Smt. Shanti Devi in stituted a suit under Section 229-B of UPZA and LR Act against the defendants Gajram and others with the prayer that she be declared a Bhumidhar in possession with transferable rights over the disputed land as detailed at the fool of the plaint. The learned trial Court after completing the requisite trial has dismissed the aforesaid suit on 1-2-93. Aggrieved by this order an appeal was preferred. The learned Addl. Commissioner has allowed the appeal and set aside the aforesaid judg ment and decree on 6-8-93. Hence this second appeal. I have heard the learned Counsel for the parties and perused the records on file. For the appellant it was contended that the judgment and decree passed by the learned trial Court is against the facts and law of the case. That the Will dated 14-7-8 1 was not proved by the marginal witnesses, hence the learned Addl. Commissioner has committed manifest error of law, that Smt. Shanti Devi was not related to Smt. Laxmi Devi, hence her claim is quite fake and wrong. That Smt. Laxmi Devi cannot inherit the property of Chhotey Lal under Section 171 of the UPZA and LR Act, hence the claim of the plaintiff respondent No. 1 was wrong and illegal that the suit of the plaintiff respondent No. 1 was barred by Section 34 of the Specific Relief Act as she is not in possession over the disposed property. That the learned Addl. Commis sioner has failed to give proper finding and has not applied his judicial mind and turned sketchy order which is no order in the eye of law that the judgment and decree passed by the learned Add. Commissioner is perverse erroneous illegal and contrary' to the provision of law, hence it is liable to be set aside. In reply the learned Counsel for the respondent submitted that the judgment and decree passed by the learned lower appellate Court is quite just and proper which must be maintained as it has passed the aforesaid order after proper consideration of the facts and evidence on record. I have carefully and closely con sidered the contentions raised by the learned Counsel for the parties and have also gone through the records on file. On perusal of the records it is abundantly clear that the Will dated 23-12-85 is fake and fabricated. The extract of khatauni for 1390 to 1396-F clearly reveals that plot Nos. 215 and 216 are mentioned in this appeal whereas these plots have already been transferred in favour of the one Rah-mat s/o Kalian before 8r8-84. Likewise the plot No. 20 is still recorded in the name of Smt. Laxmi Devi. The learned Addl. Com missioner has properly analysed, discussed and considered the material and relevant facts and circumstances of the instant case and has recorded a clear and categorical finding to the effect that the Will dated 23-12-85 is not genuine. The learned trial Court has not properly examined the mat ter in question in correct perspective of law, as such the learned lower appellate Court has rightly allowed the appeal. The appellants have utterly failed to substan tiate their claims as to their title and pos session over the suit land. I find no force in the contention raised by the learned Coun sel for the appellant.
(3.) IN view of the discussions made here in above, I come to the conclusion that this second appeal being devoid on merits deserves to be dismissed and the aforesaid impugned order dated 6-8-93 is liable to be maintained. Consequently this second appeal is accordingly dismissed and the aforesaid impugned order dated 6- 8-93 is hereby sustained. Let the records be returned forthwith to the Court concerned. Stay order if any is hereby vacated. Appea dismissed. .;