- (1.) THIS second appeal of Nanduram and others is directed against the order of first appellate Court dated 11-11-1991 dismissing the appeal against the order and decree of the trial Court dated 31-7-1979 decreeing the suit of respondents in action at law under Section 229-B of ZA and LR Act.
(2.) THE facts as per the exposition in the pleadings are Jagarnath, Bachau and Lallan filed suit under Section 229-B of U. P. Z. A. and L. R. Act for declaration that the plaintiffs are co-bhumidhars alongwith Ghure and Ramroop, defendant Nos. 1 and 2 with the allegations that the successors of Rachchhoo are members of joint family and Vishvanath was the head and Karta of the family, that the land in dispute was acquired by the sons of Rachchhoo in the state of jointness, that the entry in the name of Vishvanath, was recorded in the revenue papers in representative capacity and on his death Ghure, defendant No. 1 was recorded in the representative capacity, that the plaintiffs and defendants are in joint possession over the disputed land, that the plaintiffs requested the defendants to get the names of the plaintiffs also recorded as co-Bhumidhar but they refused, hence the suit was filed for the aforesaid relief. A pedigree was also given in the plaint. The claim is repudiated in a written statement by the defendant Nos. 1 and 2. They pleaded that the land in dispute along with other property was acquired by Vishvanath, the defendants father alone, that after the death of Rachchoo, Vishvanath and thereafter his sons, the defendants are the exclusive tenure-holders and in possession over the land in dispute that they had been paying rent to Zamindar prior to the date of vesting and thereafter are paying land revenue to the State of U. P. that the plaintiffs have no concern at all with the land in disptue, that the family of the parties was not joint at the time of acquisition of the property in dispute, that it is totally incorrect to say that Vishvanath was karta of the family. The defendants further pleaded that the land in dispute was never acquired by the joint family as there have been suppression in the family about 50 years ago and thereafter Vishvanath exclusively acquired the land in dispute. The pleadings of the parties led to 8 issue being framed by the Court. Parties have been given chance to lead their evidence. They have adduced evidence documentary and oral. On 31-7-1979 the suit is decreed. The appeal by contesting defendants Nanduram and others is dismissed on 14-11-1991. Consequently this second appeal has been filed.
(3.) THE substantial questions of law involved in the second appeal were not formulated in the memo of appeal and these have been formulated subsequently and filed alongwith an application dated 31-5- 2002 at the time of argument. THEse substantial questions are: (a) Whether the Courts below have ignored the entire documentary evidence i. e. Revenue entries and Khatauni entries right from 1334 Fasli onwards and the findings recorded by the Courts below declaring the plaintiffs respondents as co-tenure holders, are preverse based on no legal and relevant evidence on record? (b) Whether Zaman 9 entry made in favour of the plaintiffs without serving notice in PA Form 24 and witout complying with the provisions of para A-55a of L. R. Manual is inadmissible evidence and the findings of the trial Court based thereon are vitiated by manifest errors of law. (c) Whether the suit is barred by Section 42 old S. R. Act to Section 34 of new S. R. Act. (d) Whether the claim of the plaintiffs is barred by the principle of res-judicata in as much as a portion of land in dispute was acquired by the State Government in land acquisition proceeding and compensation was exclusively paid to Vishvanath or his successors. THE Counsel for the respondents have filed written objection dated 18-6-2002 with the contention that these formulated questions are not substantial questions of law and there is no subsequential questions of law involved in the scond appeal. This has also been pleaded that the second appeal be dismissed as conclusions and findings of both the Courts below is based on proper appreciation of the evidences which cannot be interfered in second appeal. I have heard that the learned Counsel for the parties and perused the record. There is not denying for fact that second appeal is heard only on substantial question of law involved in it. The Supreme Court has also held in (2000) 10 Suprme Court Cases page 617, that formulation of substantial question of law is Sine Qua non for invoking jurisdiction under Section 100 CPC and there can not be any interference in the decree without framing such substantial questions of law. Hence, firstly it has to be seen whether there is any substantial question of law involved in this second appeal, which needs the interference of this Court, and secondly whether the findings of the Courts, below are based on proper appreciation of the evidences adduced by the parties or it is perverse as alleged by the appellants. So far as the subsequent formulation of these four substantial questions of law filed alongwith the application dated 31-5-2002 is concerned, I am convinced with the following arguments of the Counsel for the respondents: (a) The alleged first question is not the substantial question of law because both sides have led the evidence the receipts issued by the Zamindar of 1334 Fasli and onwards have been filed by the plaintiffs, which are undisputed. Both the Courts have referred to it and have also discussed the entries of Khatauni of 1334 Fasli. Therefore a finding of fact has been recorded by the trial Court and has been confirmed by the appellate Court. The defendant appellant has filed no document showing settlement of land with Vishvanath alone by the Zamindar. They filed Khatauni of 1334, 1356, 1359 and 1363 to 1365 and gave statements of Aheaza and Ramroop, which do not show that the land was settled with the Zamindar in favour of Vishvanath alone whereas Vishvanath was the elder brother and katra of the family after death of common ancestor Rachchhoo. The plaintiff respondents have discharged their burden by filing the recipts of Zamindar and by producing the Khatauni containing the names of plaintiff in Varg-9 entry. The defendants appellants had never challenged this entry. (b) The alleged second question is also not substantial question of law and it is not involved in this case because the trial has already held that the entry in varg-9 show only possession. The entry was made on 6-3-1969 that is seven years before the filing of suit. The defendant/appellant has failed to produce the copy of document or notice showing no service upon him. The defendant failed to prove that this entry is wrong by producing any paper or documents. The trial Court has taken this entry as document of possession in favour of the respondents. This entry was remaining unchallenged by the appellants. (c) The alleged third question is also not a substantial question and it is not involved because it is suit for declaration of title under Section 229-B of U. P. Z. A. and L. R. Act and not a civil suit for injunction. There is no application of Section 42 (new Section 34) of S. R. Act. (d) The alleged fourth question is also not involved because the family was joint and receiving of compensation by one of the members is immaterial and in land acquisition proceedings no question of title was to be decided thus the law of res-judicata is not applicable. Thus on the above grounds, I do not find these substantial questions of law in-volved in this second appeal. It is subsequent formulation by the appellant after eleven years of filing of appeal also prove that this formality has been taken just to save this second appeal from being dismissed on this count alone. Thus, the objection of the respondents in this regard is worth acceptable and I do not find these substantial questions of law fit for consideration. Hence, no interference on this ground is called for.;