S.P.PANDEY - (1.) THIS is a second appeal under Section 331 (4) of the UPZA and LR Act (hereinafter referred to as the Act) preferred against the judgment and decree, dated 11-4-1994 and 15-4-1994 respectively passed by the learned Additional Commissioner, Jhansi Division, Jhansi in appeal No. 48/106 of 1992-93, arising out of the order and decree, dated 21-1-1993 and 11-2-1993 respectively passed by the learned trial Court in a suit under Section 176 of the Act.
(2.) BRIEFLY stated, the facts giving rise to the instant second appeal are that Smt. Lajja Devi instituted a suit under Section 176 of the Act against Dal Chand etc. for partition of her 1/3 share in the land, in dispute. The defendants contested the suit by filing their written objections. The learned trial Court decreed the suit and passed the preliminary decree on 17-6-1992, holding 1/3 share of the plaintiff in plot No. 1013/3.505. On 3-7-1992, lots were filed by the Lekhpal, concerned on which the plaintiff filed her objections praying for re-preparation of lots. The learned trial Court cancelled the lots prepared by the Lekhpal and ordered for re-preparation of lots on 3-9-1992. On 27-11-1992, the Lekhpal again filed the qurras on which the defendant, Ram Kishun filed objection. The learned trial Court after completing the requisite formalities, confirmed the lots filed by the Lekhpal concerned on 27-11-1992, which were drawn by lottery and ordered for the preparation of final decree on 21-1-1993. Aggrieved by this order and decree dated 21-1-1993, an appeal was preferred. The learned Additional Commissioner allowed the appeal, set aside the order and decree, passed by the learned trial Court and confirmed the lots filed by the Lekhpal on 3-7-1992. It is against this order that the present second appeal has been filed by the plaintiff before the Board. I have heard the learned Counsel for the parties and have also perused the record, on file. For the appellant, it was contended that the judgment and decree passed by the learned Additional Commissioner is no order in the eyes of law as until and unless the order dated 3-9-1992, passed by the learned trial Court is not cancelled, the qurras dated 3-7-1992 cannot be confirmed; that since the order dated 3-9-1992 was not challenged before any superior Court, the same became final and the learned Additional Commissioner has erred in law in holding otherwise; that the order passed by the learned lower appellate Court is bad in law, as the order dated 21-1-1993, passed by the learned trial Court has been implemented and amaldaramad has been made accordingly in the Khatauni of 1398-1403-F; that the order passed by the learned Court below cannot be sustained in law as it is not necessary to consider possession and compactness in preparation of lots and as such the same is liable to be set aside and that of the learned trial Court deserves to be maintained. In reply, the learned Counsel for the respondent urged that since the defendant-respondent has miserably failed to show any illegality or material irregularity as well as jurisdictional error on the face of the record, the learned Additional Commissioner was perfectly justified in passing the impugned order, which has been passed after due appraisal of evidence on record, keeping in view the entire facts and circumstances of the instant case as well as law on the subject and as such, this second appeal having no force deserves to be dismissed outright.
(3.) I have carefully and closely considered the submissions made before me by the learned Counsel for the parties and have also gone through the relevant records on file. On a close scrutiny of the records, it is manifestly clear that the learned lower appellate Court has properly and thoroughly analysed, discussed and considered the material and relevant aspects of the instant case in correct perspective of law and has recorded a clear and categoridcal finding to the effect that the earlier qurras prepared on 3-7-1992 were based on possession of the parties, concerned and compactness, keeping in view the quality of the land in dispute whereas the lots prepared on 27-11-1992, were not prepared keeping in view these ingredients. It also came to the conclusion that undue advantage was extended to the plaintiff by the learned trial Court by confirming the lots dated 27-11-1992 and as such the earlier lots were confirmed by the learned Additional Commissioner.;