S.P.PANDEY, J. - (1.) THIS is a second appeal preferred against the judgment and decree dated 11-10-1995 passed by the learned Additional Commissioner, Moradabad Division, Moradabad in Appeal No. 72 of 1994-95, affirming the judgment and decree dated 18-11-1992 passed by the learned trial Court in a suit under Section 229-B of the U.P.Z.A. and L.R. Act (hereinafter referred to as the Act).
(2.) BRIEFLY stated, the facts, giving rise to the instant second appeal are that the plaintiff, Puran instituted a suit under Section 229-B of the Act for declaration of his rights as co-tenant alongwith the defendants 1 to 4. The defendant contested the case, denying the allegations. The learned trial Court, after completing the requisite trial, decreed the suit of the plaintiff. Aggrieved by this decree, the defendant went up in first appeal before the learned Additional Commissioner which was dismissed and the judgment and decree, passed by the learned trial Court were maintained. It is against these orders that the instant second appeal has been preferred by the defendant before the Board. I have heard the learned Counsel for the parties and have also perused the record on file. Assailing the impugned orders, the learned Counsel for the appellant has contended that the learned trial Court has committed manifest error of law and fact in assuming that the respondent No. 1 was co-sharer and Baldeva had no right to give his property to Chetram that since the learned trial Court deliberately overlooked the material fact that Baldeva had adopted Chetram, who did not claim his share in the property of his natural father and this fact was never communicated by the respondent No. 1, its impugned order is no order in the eyes of law; that the impugned orders, pased by the learned Courts below suffers from mis-reading and mis-interpretation of evidence on record; that the learned Courts, below have grossly erred in over-looking the material facts, on record and therefore, the impugned orders are illegal; that the impugned orders are erroneous, in law and fact as well as the same are against facts and evidence on record; that in any view of the matter, the impugned orders are illegal, perverse, without jurisdiction and against the facts and evidence on record which cannot be allowed to sustain and this second appeal deserves to be allowed. In support, reliance has been placed on the case laws, reported in 1980 RD 300; 1985 RD 147; AIR 1994 SC 853; 1997 RD 186;2000 RD 96 (H). The learned Counsel for the respondent, in reply, submitted that the learned Courts, below were perfectly justified in rendering the impugned orders, as the entire material on record, facts and evidence were considered by them; that the concurrent finding of fact recorded by the learned Court below duly arrived at after due and proper appreciation of evidence on record, cannot be disturbed, at this second appellate stage; that in any view of the matter, the impugned orders are liable to be sustained and this second appeal having no force, deserves to be dismissed outright.
(3.) I have closely and carefully considered the arguments advanced before me by the learned Counsel for the parties and have also perused the record, on file. A bare perusal of the record clearly reveals that after completing the requisite trial, the learned trial Court came to the conclusion that the property in dispute was ancestral, that the possession of one co-tenant is the possession of all; that the possession of the plaintiff as co-tenant on the land in dispute was proved; that the suit of the plaintiff was not barred by the provisions of Section 49 of the UPCH Act and therefore, decreed the suit of the plaintiff. The learned Additional Commissioner has concurred with the findings recorded by the learned trial Court after discussing the matter, in question and dismissed the appeal filed by the defendant.;