- (1.) DR. J. B. Sinha, J. The present second appeal has been preferred against the judgment and decree dated 26-4-97 passed by Additional Commissioner, Faizabad in respect of first Appeal No. 327 arising out of a judgment and decree dated 4-5-89 in Suit No. 35/81/24/14/46/75-A under Section 229-B/209 of U. P. Z. A. & L. R. Act by Sub-Divisional Officer, Balrampur, Gonda.
(2.) BRIEF and relevant facts of the case are that O. P. Sri Chandra filed the above suit for declaration of his right and title over the land in dispute pertaining to village Ramnagar and Lichuiya claiming himself to be adopted son of deceased Rajaram Ram Chandra and Ram Niwas besides Gaon Sabhas of Ramnagar & Lichuiya and state were made defendant Nos. 1 to 5. The appellant Saroj Kumari Pandey sought to be made defendant in the suit on the basis of sale deed dated 17-7-80 executed by defendant Nos. 1 & 2 Ram Chandra and Ram Niwas pertaining to land No. 329/1. 26 acre situate in village Lichuiya. The trial Court allowed the application and appellant filed written statement as defendant No. 6. The Court framed 13 issues in the suit on the pleadings of the parties. Since the land situate in village Ramnagar was noticed under consolidation operation the Court abated the proceeding in respect of that village and after taking evidences and affording opportunity of hearing to the parties decided the suit on 4-5-89 in favour of O. P. ordered for expunction of appellants name in the revenue records in respect of land situate in village Lichuiya. The lower appellate Court confirmed the order of the trial Court and dismissed the appeal. Aggrieved by his order Saroj Kumari has preferred the present second appeal. The substantial questions of law were framed and filed by the appellant on 10-2-03. I have heard the learned Counsels for both the parties on the substantial questions of law framed and involved in this second appeal and perused the records. The Counsel for the appellant pleaded that trial Court has not decided all the 13 issues framed in the suit which was mandatory under Order XIV Rule 2 of C. P. C. It was also pointed out that the plaint bears no signature of Srichand and suit was filed by Harishchandra as Mukhtar-e-aam of Srichandra executed by him at the age of 14 years in the year 1977 whereas minors are not entitled to execute the power of attorney. It was also pleaded that Suroj Kumari was not a party to the suit decided in consolidation operation relating to a different village and on the basis of which the Courts below have decreed the suit in favour of O. P. whereas that order is not binding on the appellant/defendant. It was also pointed out that a person of more than 25 years could not be adopted and no opportunity of rebuttal has been given to the defendant against the documents filed by O. P. /plaintiff at a later stage. The Counsel for the O. P. /plaintiff argued that against the concurent findings of facts recorded by both the lower Courts, this Court cannot interefere in second appeal. It was also pleaded that Srichand has been accepted as an adopted son of Rajaram in consolidation operation vide order dated 28-7-88 and when a Court of law of competent jurisdiction has decided this point that decision will hold good in other cases also. On the basis of the above the Counsel pleaded for the dismissal of this 2nd appeal. On a perusal of records and considering the arguments of the Counsels, it is clear that the appellant Saroj Kumari Pandey is claiming her title over the land in dispute on the basis of sale deed dated 17-7-80 executed by Ramchandra and his brother Ramniwas and her name is recorded in the revenue records since then. The Courts below have concluded that no person has the right to transfer the land beyond his entitlement over that land and the executors of sale deed in the present case had not got any title as heirs of Rajaram over the disputed plot and so the appellant is not entitled to get any title over the disputed land on the basis of aforesaid sale deed. The Courts below have also held that there is no necessity to decide the point of adoption of O. P. as son of Rajaram again on the basis of evidences as the verdict of Consolidation Court on this point is already therein respect of land situate in village Ramnagar but. I do not agree with the findings of the Courts below. It is a fact that Saroj Kumari was not a party to the suit or proceeding in Consolidation Court, hence there was no opportunity for her to contest the matter on the point of adoption. Hence she can not be forced to abide by such order passed in a case to which she was not a party. Moreover the sale deed has yet not been cancelled and on its basis name of the appellant is recorded in revenue records. The appellant has purchased the land from seller in good faith after verifying the fact that Ramchandra and Ramniwas name was entered as successor of Rajaram. Thus without affording sufficient oppurtunity to the appellant to adduce evidence in rebuttal against the evidences filed by the O. P. /plaintiff at a later stage and deciding the issue of adoption afresh on the basis of evidences filed by the parties, the name of the appellant cannot be struck off from the revenue records. The trial Court has also failed to follow the law laid down in Order XIV Rule 3 CPC and has decided the suit on only two issues, whereas 13 issues were framed on the basis of pleadings of the parties. The suspicious circumstances regarding Srichandra not signing the plaint and his ability as minor to execute the power of attorney in favour of Harishchandra at the age of 14 years, his year of birth being 1963, to which the Counsel for the appellant pointed out also needs to be scrutinized. Thus I find that the substantial questions of law involved in the matter and raised at this stage have not been considered and decided by the Courts below on the basis of evidences and this 2nd appeal is fit to be allowed. ORDEr In view of the above discussion and conclusions this 2nd appeal is allowed and the impugned orders of the Courts below dated 26-4-97 and 4-5-89 respectively are set aside and the case is remanded to the trial Court to decide it afresh in the light of the above observations. Files of the Courts below be sent back within a week. Let this file be consigned. Appeal allowed. .;