S.R.PANDEY, J. - (1.) THIS is a second appeal under Section 331 (4) of the UPZA and LR Act preferred against the judgment and decree, dated 19-9-1997 passed by the learned Additional Commis­sioner, Moradabad Division, Moradabad arising out of the judgment and decree dated 26-9-1996 passed by the learned trial Court in a suit under Section 176 of the UPZAndLRAct.
(2.) BRIEF and relevant facts of the case are that the plaintiff- respondent in­stituted a suit under Section 176 of the UPZA and LR Act for partition of her share in the disputed land as detailed in para 1 of the plaint. The learned trial Court after completing the requisite trial decreed the aforesaid suit on 26-9-1996. The learned Additional Commissioner has dismissed the first appeal on 19-9-1997. 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 learned trial Court has wrongly declared the plaintiff's rights as co-tenant which could not be granted in a suit under Section 176of the UPZAndLRAct; that the State and the Gaon Sabha, concerned have not been impleaded as defendant in the suit, concerned; that the finding as to the Will, recorded by the learned lower appellate Court is quite erroneous and perverse and against the facts of the case; that the lower appellate Court has over­looked and ignored the material facts and evidence on record ; that the impugned order passed by the learned Additional Commissioner suffers from manifest error of law apparent on the face of the record and deserves to be set aside. In reply, the learned Counsel for the respondent sub­mitted that the concurrent finding of fact recorded by the Courts below cannot be disturbed at this second appellate stage ; that fake and fabricated Will has been set up by the appellant and as such the aforesaid impugned order passed by the learned Courts below must be maintained.
(3.) I have carefully and closely con­sidered the contentions raised by the learned Counsel for the parties and have also gone through the relevant records on file. On a close examination of the relevant records, ii is abundantly clear that in the plaint of the aforesaid suit, the Gaon Sabha concerned has been impleaded as defendant and as such the contentions of the appellant to the effect that the Gaon Sabha has not been impleaded is not cor­rect. So tar as U.P. State is concerned, in a suit under Section 176 of the UPZA and LR Act, the Gaon Sabha concerned is a mandatory party and not the U.P. State.;