- (1.) S. R. Lakha, Member. This second appal has been filed against the judgment and decree dated 31-1-2002 passed by learned Additional Commissioner, Moradabad in Appeal No. 505 of 2000-2001 confirming the judgment and decree dated 27-3-2001 passed by A. S. D. O. Sadar, Rampur in Suit No. 80 of 99-2000 under Section 229-B of the U. P. Z. A. and L. R. Act.
(2.) BRIEFLY stated facts are that Mohd. Amin instituted a suit under Section 229-B of the U. P. Z. A. and L. R. Act for declaration impleading Mohd. Umar, Smt. Fatima, Abdul; Rauf and others defendants. He claimed that the land in question solely belong to him. He alleged that he had purchased the area in the year 1965 and had continued to remain in possession since then. He also put up an alternative plea that even if defendant No. 1 to 3 had any right they lost the same on account of adverse possession of the plaintiff for over 12 years. He prayed that he be declared to be the sole bhumidahr of the land in question Defendant No. 1 and 2 contested the suit. They pleaded that in the land in queet on the share of defendant No. 1 was 1/3rd and that of defendant Nos. 2 and 3 was jointly 1/3rd. They decided the suit on this basis. They also alleged that during the consolidation operations the names of defendants have been entered alongwith the name of the defendant and that the present suit is barred by Section 49 of the U. P. C. H. Act. They also pleaded that the present suit is barred by Setion 34 (5) of U. P. Land Revenue Act. They specifically averred that law of 'sharah Mohammadi' is not applicable to the present case. They trial Court found that in Khatauni 1400-1405 Fasli and in C. H. Form 45 defendant Nos. 2 and 3 are recorded as co-tenants alongwith the plaintiff. It also found that the plaintiff failed to establish that he contiuned to be in possession exclusively for over 30-35 years. The trial Court held that the present suit was barred by Section 49 of U. P. C. H. Act and dismissed the same. On appeal the learned Additional Commisisoner confirmed the order of the trial Court and dismissed the appeal. Hence the present second appeal. I have heard the learned Counsel for the parties and perused the record carefully. The learned Counsel for the appellant argued that the property in question had fallen inthe share of Smt. Zubeda who had transferred the same in favour of the plaintiff through sale-deed dated 30-8-65 and that since then the plainitff continued to be the owner and in possision of the land in question. He also argued that the name of the plaintiff had been mutated on the basis of the sale-deed. He vehemently argued that the two Courts below have failed to take this material fact into account and have gone wrong in passing their judgments on the entries in record. He submitted that the plaintiff continued to remain in possession as before and did not know as to how the name of defendant No. 1 and 2 were recorded as co-tenants during consolidation operation. He also invited attention to the written statement filed by Abdul Rauf who had admitted the calim of the plaintiff. According to him, the admission by Abdul Rauf was against his own interest and showed the truth, should be accepted. He submitted that after execution of the sale-deed in the year 1965 the defendants were estopped by principles of estoppel and acquiescence and could not challenge the rights of the plainittf. He submitted that the observations made by the learned Couts below that the suit is barred by Section 49 U. P. C. H. Act is not correct because the entires made during consolidation operations were the result of fraud and did not carry any weight in the eye of law. He submitted that the Courts below have wrongly dismissed the suit.
(3.) THE learned Counsel for the respondent, in reply, has submitted that the two Courts belw after considering the material on record found that the present suit was barred by Section 49 of U. P. C. H. Act. He stated that consolidation oprations took place more than 30 years back and the plaintiff did not care to object to the entires of the name of the defendants during the consolidation operations and all the C. H. Forms were prepared showing the defendants as co-tenants and hence learned Courts below have rightly held the present suit to be barred by Section 49 C. H. Act. He further stated that it would no longer open to the plaintiff to say that he did not know about the entry of the name of the defendants after such a long time. He argued that the Courts below have rightly dismissed the suit of the plaintiff. I have considered the arguments advanced by the learned Counsel for the parties. From a perusal of the record it is obvious that the defendants were enterred as co-tenants during the course of consolidation operations and in C. H. Form 11, C. H. Form 23 and C. H. Form 45 they were shown as co- tenants and in Khatauni 1372f to 1377 Fasli the entry was made showing them as co-tenants. This entry has continued since then. The Courts below rightly observed that the averments of the plaintiff that he did not know about the names of defendants being entered during the consolidation operations is not correct. The plaintiff also claimed rigthts by adverse possession which he failed to prove. The plaintiff also frailed to prove as to why his name was not recorded exclusively over the land in question during the consolidation operation on the basis of the sale-deed. The admission of the claim of the plaintiff by Abdul Rauf would not help in the present case because his claim cannot bind other defendants. The learned trial Court after considering the material on record rightly held that the suit of the plaintiff was barred by Section 49 of U. P. C. H. Act. The learned Additional Commisioner has discussed the matter in detail and has confirmed the judgment of the learned trial Court.;