S.P.PANDEY, J. - (1.) THIS is a second appeal under Section 331 of the UPZA & LR Act (hereinafter referred to as the Act), preferred against the judgment and decree, dated 8-10-1996, passed by the learned Additional Commissioner, Moradabad Division, Moradabad, in Appeal No. 66 of 1995-96/Bijnor, dismissing the appeal and confirming the judgment and decree dated 14-2-1977/18-2-1977, passed by the learned trial Court in a suit under Section 229-B of the Act.
(2.) BRIEFLY stated, the facts, giving rise to the instant second appeal are that Iqrar Ali, plaintiff filed a suit under Section 229-B of the Act against Abrar Ali etc. defendants, impleading the Gaon Saba concerned and the State of U.P., for declaration of his rights, as co-bhumidhar of the land in dispute, as detailed at the foot of the plaint, along with the Defendant No. 1, Abrar Ali and that the Defendant No. 4, Amir Hasan has no concern with the same. It was inter alia pleaded by the plaintiff that he and the Defendant No. 1 came in possession of the land in suit after the death of Mst. Mubarkunnissa, who was earlier tenant and whose rights were declared absolute in the consolidation proceedings, as well; that the plaintiff came to know that the name of the Defendant No. 1 is solely entered over the land, in suit, in the revenue papers after perusing the same; that the Defendant No. 1, Abrar Ali, who is a literate person and a school teacher, got some blank papers, signed from the plaintiff, on the pretext of mutation, after the death of Mst. Mubarkunnissa and his sole name fictitiously and frauduently recorded in the revenue papers, over the land is suit, by way of an order of the Tehsildar, dated 14-8-1963, which came in the know of the plaintiff on a perusal of the Khatauni 1370-72F and was illegal; that the cause of action arose when the Defendant No. 1 denied to get the name of the plaintiff also entered, as co-bhumidhar of the land in dispute, in the revenue papers; that the Defendant No. 4 has no concern or right and title over the land, in suit and hence the suit. The defendants contested the suit of the plaintiff, denying the allegation. On the pleadings of the parties, concerned, the learned trial Court framed as many as seven issues and after completing the requisite trial, decreed the suit of the plaintiff, vide its order, dated 14-2-1977, declaring him as co-bhumidhar of the land, in suit, along with the Defendant No. 1, he was not a Mutwalli but a co-bhumidhar in his own right. Aggrieved by this judgment and decree passed by the learned trial Court, an appeal was preferred by Abrar Ali, Defendant No. 1. During the pendency of this appeal, both the plaintiff and the defendant died and were substituted by their sons and heirs. The learned Additional Commissioner, vide his order, dated 8-10-1996, has concurred with the findings, recorded by the learned trial Court and dismissed the appeal. It is against this order that the instant second appeal has been preferred before the Board by Shahid Ali etc., sons and legal representatives of the Defendant No. 1, Abrar Ali. 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 impugned judgment and decrees, passed by the learned Courts, below,are no judgments in the eyes of law, as Niaz Ali, who was the original tenant of the land, in dispute, had executed a WAQFNAMA on 13-10-1941, by virtue of which, after his death, his wife, Mst. Mubarkunnissa became Mutwalli, after whose death, the father of the appellants became Mutwalli of the Waqf and hence his name so appeared is the revenue papers that the learned Courts below have grossly erred in holding otherwise as the plaintiff respondents are ousters for more than 20 years and hence their rights, if any, extinguished, perfecting the rights and title of the appellants, by adverse possession; that the suit of the plaintiff was barred by Section 34(5) of the Land Revenue Act as well as Section 34 of the Specific Relief Act; that as the plaintiff respondents' father got some other land in lieu of the land in dispute, he has no right or title over the same and the learned Courts below have also grossly erred in not taking this fact into account; that the learned Courts, below, have committed manifest error of law in recording their findings, without due and proper appreciation of evidence, on record; that the judgments and decrees, passed by the learned Courts, below, are based on assumptions and presumptions as well as on surmises and conjectures; that the findings, recorded by them, are perverse, erroneous, illegal and contrary to the provisions of law and as such, the judgments and decrees, passed by them, cannot be allowed to sustain and this Second Appeal deserves to be allowed. The learned counsel for the respondents, in reply, submitted that the learned Courts, below were perfectly justified in rendering the impugned judgments and decrees, in favour of the plaintiff respondents as their findings have been arrived at after due and proper appreciation of evidence, on record, with which no interference is called for by this Court; that the findings of fact, recorded by the learned two Courts, below, cannot be disturbed, at this second appellate stage; that the defendant appellants have miserably failed to substantiate their claim before the learned Courts, below and, therefore, they have rightly decreed the suit of the plaintiff respondents, keeping in view the facts and circumstances of the instant case as well as the evidence, on record and as such, this second appeal has no force and is liable to be dismissed, outright. In support, reliance has been placed on the case laws, reported in 2000 (91) RD 545 and 180.
(3.) I have closely and carefully examined the contentions, raised by the learned counsel for the parties and the relevant records, on file. A bare perusal of the relevant record clearly reveals that the case of the plaintiff was that of fraud, dishonesty and malpractice played upon him by the Defendant No. 1, in getting his name solely recorded in the revenue papers. The learned trial Court, after completing the requisite trial, came to the conclusion, after a very detailed and analytical discussion that the plaintiff is the co-bhumidhar of the land, in dispute, which is not a Waqf, along with the Defendant No. 1, Abrar Ali; that the suit is not barred by Section 49 of the UP Consolidation of Holdings Act; that Amir Hasan, Defendant No. 4 has failed to prove his possession, over the land, in suit for more than 12 years and, therefore, could not mature his title over the land in suit by prescription of law and that the plaintiff is therefore, entitled to a declaration, sought for, in his suit. With these findings, it decreed the suit of the plaintiff, vide its order, dated 14-2-1977. In appeal filed by the defendant, the learned Additional Commissioner has also dealt with the matter, in question and concurred with the findings, recorded by the learned trial Court, thereby dismissing the appeal. It has been categorically held that the defendant has miserably failed to substantiate his claim, whereas the plaintiff on the other hand, has successfully proved his case by adducing cogent and plausible evidence, on record. It has also been held that Iqrar Ali and Abrar Ali, plaintiff and defendant, respectively, in fact, were co-bhumidhar, having equal shares, in the land, in suit and the learned trial Court did not commit any mistake in decreeing the suit of the plaintiff.;