- (1.) THIS is a second appeal under Section 33 1 (3 ) of the UPZA and LR Act preferred against the judgment and decree, dated 2-9-86 passed by the learned Addl. Commis sioner, Moradabad Division, moradabad arising out of a judgment and order dated May 27. 1983 passed by the learned trial Court in a suit under Section 229-B of UPZA and LR Act.
(2.) BRIEF and relevant facts of the case are that the plaintiff one Habib instituted a suit under Section 229b/209 of UPZA and LR Act, imp leading Meera and others as defendant with the prayer that the posses sion over the disputed holding be delivered to the plaintiff-respondent after dispossessing the defendant-appellant from (he same. The learned trial Court after completing the requisite trial, has dismissed the aforesaid suit on May 27, 1983. Aggrieved by this order an appeal was preferred. The learned Addl. Commis sioner has allowed the appeal on Septem ber 26, 1986. Hence, this second appeal. I have heard the learned Counsel for the parties and perused the record on file. For the appellant it was contended that the learned lower appellate Court has not set aside the findings recorded by the learned trial Court in respect of the sale-deed that the U. P. Act No. 8 of 1977, con ferring the bhumidhari rights on sirdars has not retrospective application as such the respondents Habib cannot gel any ad-vantage of The amending Act, that the sale-deed in question was executed in 1976 by a Sirdar as such it was void and conveyed no right and title to the respondent Habib that no pan of sale consideration passed to vendor before the sub-registrar and as such the alleged sale-deed stands vitiated, that the findings of the lower appellate Court are based on the conjectures and surmises, that no bhumidhari certificate was ever issued in the life lime of Nanhey who died on 25-12-76 before the Act No. 8/1977 came in to operation as such Nan hey had no righl to sale the disputed hold ing that the learned Addl. Commissioner has passed an ex-pane order dated 26-9-86 allowing the appeal preferred by the respondent Habib that the learned addl. Commissioner should have Decided the appeal after affording The reasonable op-porlunily of being heard to the both the parties as such The aforesaid impugned order is ex-party and not sustainable. In support of this contention he has cited the case laws reported in RD 1971 page 371 (HC Full Bench), RD 1972 page 206 (BR) and RD 1987 page 23 (HC ). In reply, the learned Counsel for the contesting respondent submitted that the learned lower appellate Court has properly con sidered the oral and documentary evidence on record and has recorded clear and categorical finding which must be maintained. In support of his contentions, he has cited the case law reported in RD 1972 page 340 (BR ). I have carefully and closely con sidered the contentions raised by the learned Counsel for the parties and have also gone through the relevant records on file. The close scrutiny of the records clear ly reveals that the learned trial Court has properly analysed discussed and con sidered the relevant and material facts and circumstances of the instant case and has drawn a correct conclusion to the effect that no valid sale-deed was executed by the aforesaid Nanhey and therefore, no title passes to the Habib plaintiff-respondent. The points at issue have been exhaustively examined by it. I entirely agree with the conclusion drawn by it in its judgment and order dated May 27th, 1983.
(3.) THE learned lower appellate Court has miserably failed to reverse the findings recorded by the learned trial Court and has erroneously recorded the finding based on conjectures and surmises. It has not properly examined the matter in question in correct perspective of law. THE learned lower appellate Court has not properly exercised his jurisdiction vested in him by law. It has not addressed itself to the facts and circumstances of the instant case. THE plaintiff-respondent has utterly failed to substantiate his claims as to the title and possession over the disputed holding. No cogent and positive evidence has been ad duced to establish his right interest and possession over the suit land. THE learned Addl. Commissioner has allowed the ap peal preferred by the respondent Habib on flimsy and unsustainable grounds while the learned trial Court has closely ex amined the matter in question in con sonance with the provisions of law. Having scrutinized the matter in question, I find that the aforesaid im pugned judgment and decree dated 24-9-86 passed by the learned Addl. Commis sioner is unsustainable, ill-founded and un- warranted in-law, as such it must not be sustained. To my mind the judgment and order passed by the learned trial Court dated May 27, 1983 is well-dis cussed well reasoned, well considered, well founded and wholly warranted in law.;