S.P.PANDEY, J. - (1.) THIS is a second appeal under Section 331 (4) of the U.P.Z.A. and L.R. Act (hereinafter referred to as the Act) preferred against the judgment and decree dated 26-8-1997, passed by the learned Additional Commissioner, Moradabad Division, Moradabad in Appeal No. 40 of 1996-97, arising out of the judgment and decree dated 20-11-1996, 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 the plaintiffs, Sayeed Ahmad etc. instituted a suit under Section 229-B of the Act read with Section 64 of the Urban Area Z.A. and L.R. Act, against the defendants, Smt. Kamlesh Kumari etc. for declaration of their rights as bhumidhar with transferable rights, alleging inter alia that the euclyptus trees, belonging to the plaintiffs were standing on the land, in dispute; that the name of the defendant No. 1 is continuing to be recorded in the Khatauni 1369 to 1410-F fictitiously and fraudulently; that the original tenure holders of the land in dispute were Kanta Prasad etc.; that after the death of the original tenure holders, the father of the plaintiffs took adverse possession of the land in dispute after whose death, the plaintiffs perfected their rights after abolition of Zamindari and promulgation of the Urban Area Z.A. and L.R. Act. The cause of action arose when the plaintiffs came to know about the farzi entry of the name of the defendant No. 1. The defendant contested the suit, denying the allegations, rights and title as well as possession of the plaintiffs. The learned trial Court after completing the requisite trial, dismissed the suit of the plaintiffs vide its order dated 20-11-1996. Aggrieved by this decree, the plaintiffs went up in appeal before the learned Additional Commissioner which was also dismissed vide his order, dated 26-8-1997. It is against these orders that the instant second appeal has been filed before the Board by the plaintiffs. 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 contended that the impugned orders are bad in law, as the revenue entries of 1359-F and facts as well as circumstances and the evidence on record of the instant case were ignored; that since the adverse possession of the father of the plaintiffs was proved from the extract of Khatauni 1359 of 1360F and the plaintiffs had matured their rights in 1361F under the U.P. Tenancy Act, the learned Courts below, have grossly erred in holding otherwise; that since the original tenure holders had no rights to execute a sale-deed in favour of the respondent No. 1, the case of the plaintiffs was proved to the hilt from the evidence on record and the learned Courts below were not at all justified in dismissing the same; that in any view of the matter, the impugned orders are illegal , perverse and based on surmises and conjectures and cannot be allowed to sustain and this second appeal deserves to be allowed. The learned Counsel for the respondent, in reply, contended that since the concurrent findings recorded by the learned Courts below were duly arrived at after due and proper appreciation of evidence on record, the same cannot be disturbed at this second appellant stage; that no substantial question of law is rather involved in the instant case; that in any view of the matter, since the learned Courts below were perfectly justified in throwing out the case of the plaintiffs and in rendering the impugned orders, this second appeal, having no force, deserves dismissal outright.
(3.) I have closely and carefully considered the arguments, advanced before me by the learned Counsel for the parties and have also scanned the record, on file. A bare perusal of the record clearly reveals that the learned Courts below were perfectly justified in rendering the impugned orders and in dismissing the claim of the plaintiffs. It is clear that the onus of proving their case was on the plaintiffs, which they miserably failed to discharge by filing positive evidence in their favour. It was for them to prove that their father, Mohd. Umar had acquired maurusi rights under the U.P. Tenancy Act and that after his death, they were in continuous possession of the land in dispute, maturing sirdari rights after the abolition of zamindari under Section 18 of the Act. In extract of Khatauni 1360F, Mohammad Umar is recorded in Class-20 with a duration of his possession as three years, which shows that his adverse possession started in the year 1357-F. But the plaintiffs have themselves claimed the same with effect from 1358F. Not even an iota of evidence has been filed by the plaintiffs which may prove their case and therefore, the learned Courts, below have very rightly thrown out their case. The concurrent findings recorded by them have been arrived at after due and proper appreciation of evidence on record with which no interference is called for. I entirely agree with the views expressed by them and do not see any justification to accept the contentions of the learned Counsel for the appellant, who has miserably failed to substantiate his claim. I am, therefore, not inclined to interfere with the impugned orders, passed by the learned Courts below and as such, this second appeal very richly deserves for dismissal outright.;