S.P.PANDEY, j. - (1.) THESE are two second appeals preferred against the judgment and decree dated 30-8-1999" passed by the learned Additional Commis­sioner, Moradabad Division, Moradabad, arising out the judgment and decree dated 27-11-98 and 4-12 1998 respectively passed by the learned trial Court in a suit under Section 229-B of the UPZA and LR Act ( here in after referred to as the Act). Since the parties and facts in both the second appeals are similar as such these are being disposed of by this common judgment. Appeal No. 1 of 1999-2000/Moradabad shall be the leading case.
(2.) BRIEF and relevant facts of the case are that the plaintiff, Govinda instituted a suit under Section 229-B of the Act impleading Smt. Champia and others for dec­laration of his rights with the prayer that the plaintiff is sirdar in possession over the land in suit as detailed at the foot of the plaint and the name of the defendants 1 to 3 be expunged from the revenue records. The learned trial Court by means of its order dated 25-10-1971 an exparte decree was passed in the aforesaid suit. There after on 9-2-1973, the plaintiff Govinda sold the land in suit in favour of Vikram Singh and Sardar Singh by way of registered sale-deed. Later on a restoration application was moved and the aforesaid exparte decree was set aside on 20-12-1974. On 27-11-1998, the learned trial Court after completing the requisite trial decreed the aforesaid suit. Aggrieved by this order, two first appeals were preferred. The learned lower appellate Court has allowed the ap­peals and set aside the aforesaid judgment and decree dated 27-11-1998 and 4-12-1998 respectively passed by the learned trial Court. Hence these two second ap­peals. I have heard the learned Counsel for the parties and have also perused the record on file. For the appellant Vikram, it was contended that the judgment and decree passed by the learned first appellate Court are against the law and facts on record; that the findings recorded by it are based on conjectures and surmises ; that the appellants, Vikram Singh and others being purchasers of the land in suit are the only real owners in possession of the dis­puted holding ; that the counter-claim shall be treated as plaint and thus the counter-claim can be decreed as per the provisions contained under Order VIII Rule 6-Aof the Civil Procedure Code; that the provisions of Section 80 CPC are not mandatory and as such its compliance is not essential ; that Sml. Champia, Smt. Buddhu and Smt. Ramwati were not the daughters of the deceased Nanhey, the previous owner of the property in question ; that Govinda is the real legal heirs of the deceased Nanhey and after his death, being nephew of the deceased is legally entitled as heir of the property in question; that the sale-deed dated 9-2-1973 is not void but genuine one as the possession of the appel­lant over the disputed property was ad­verse against Smt. Champia, Smt. Buddhu and Smt. Ramwati; that the learned lower appellate Court has recorded an er­roneous and illegal finding which must be quashed. For the appellant, Govinda it was contended that with out ATfollowing the provisions of Section 80 CPC and 106 of the Panchayat Raj Act on the basis of the counter-claim only the case of the pur­chasers like Vikram etc. can be decreed as the appellant, Govinda is the legal heir of the deceased Nanhey; that the bar of Sec­tion 49 of the UPCH Act is not applicable to the aforesaid declaratory suit and as such the sale-deed dated 9-2-1973 is void and not genuine one and hence not bind­ing on the appellant ; that the learned lower appellate Court has not considered the oral and documentary evidence on record and as such the aforesaid impugned judgment and decree passed by the learned lower appellate Court be set aside. In sup­port of his contentions, the learned Coun­sel for the appellant has cited the case laws reported in AIR 1970 SC 1778, 1972 RD 451 (HC.DB), 1980 RD 114, AIR 1964 SC 11, AIR 1975 Punjab and Haryana 112, 1999 Judicial Interpretation on Revenue 518 (SC), 1992 Supreme Today 172 (SC). In reply, the learned Counsel for the respondent submitted that the original suit was ex pane decreed in favour of the appellant, Govinda with out ATany informa­tion to the contesting respondents, Smt. Ramwati and others; that on 7-2-1973, the aforesaid Govinda transferred the aforesaid property in favour of Vikram and others by way of a registered sale-deed with out ATobtaining any sanad bhumidhari that on a restoration application, the aforesaid ex pane order dated 25-10-1971 was set aside that during the consolida­tion operations in the village concerned, no objection was filed by the aforesaid appellants before the consolidation authorities and as such the suit is clearly barred by Section 49 of the UPCH Act; that before the learned trial Court, written statement was filed by the contesting defendants-respondents and after a lapse of about one year, the counter-claim has been filed by the aforesaid appellants, Vik­ram Singh and Sardar Singh ; that the learned trial Court has erroneously recorded a finding as to the adverse posses­sion of the appellants, Vikram Singh and Sardar Singh on the basis of the void sale-deed ; that the U.P. State and Gaon Sabha concerned which are the mandatory par­ties, have not been heard before disposing of the aforesaid counter-claim ; that no issue as to the adverse possession has been framed by the learned trial Court; that it is also worthy of note that no plea has been taken as to the adverse possession by the appellants and as such the aforesaid judg­ment and decree passed by the learned lower appellate Court 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 records, I find much force in the contentions raised by the learned Counsel for the respon­dents. The learned lower appellate Court has properly and exhaustivley analysed, discussed and considered the relevant and material facts and circumstances of the instant case in correct perspective of law and has recorded a clear and categorical finding to the effect that the aforesaid plaintiff, Govinda is not established as the legal heir to the deceased Nanhey and the respondents, Smt. Ramwati and others are proved to be the legal heirs to the deceased. The learned lower appellate Court has correctly examined the points at issue in consonance with the provisions of law. Order VIII, Rule 6-A (4) CPC provides that the counter-claim shall be treated as a plaint and governed by the rules applicable to the plaint. Section 80 CPC provides that no suit shall be in­stituted against the Government until ex­piry of two months next after the notice in writing has been delivered to, or left at the office of the Collector of the district. There is nothing on the record to show that the aforesaid procedure has been complied with by the plaintiff-appellant. The learned trial Court has recorded an er­roneous, perverse and ill-founded finding in favour of the plaintiff-appellant, Govin­da with out ATaddressing itself to the material and relevant facts and circumstances of the instant case. It has based its conclusions on surmises and conjectures which have no legs to stand upon. The exparte order dated 25-10-1971 was set aside on 20-12-1974 and as such the plaintiff appellant, Govinda is not entitled to any relief through the aforesaid ex. pane order. Moreover, the plaintiff- appellant, Govinda is admittedly five brothers. But he alone is claiming his title to the land in suit and as such the conduct of the aforesaid Govinda appears to be dubious. Two contradictory affidavits filed by his brother, Ram Kumar at the instance of the aforesaid Govinda also dis­closes the conduct of the aforementioned Govinda. The sale-deed executed by Govinda in favour of the appellants Vikram and Sardar is also proved to be a void document. The learned lower appellate Court has properly scrutinized all the relevant points at issue and drawn a cor­rect conclusion to the effect that Smt. Ramwati and others are the real heirs of the deceased Nanhey. The plaintiff-appel­lants have utterly failed to substantiate heir claims over the suit land.;