S.P.PANDEY, J. - (1.) THIS is a second appeal against the judgment and decree dated 28 -11 -1988/20 -4 -1989 passed by the learned Additional Commissioner, Varanasi Division, Varanasi in Appeal No. 287 of 1979, dismissing the appeal and confirming the judgment and decree, dated 13 -8 -1979 passed by the learned trial Court in a suit under Section 229 -B of the UPZA & LR Act (hereinafter referred to as the Act ).
(2.) BRIEFLY stated, the facts giving rise to the instant second appeal are that the plaintiff, Mahangi instituted a suit under Section 229 -B of the Act before the learned trial Court, against the defendants, Jumman etc. for the declaration of his rights as co -tenant along with the defendants 1 to 3 of the land in dispute. On notice, the defendants 2 and 3 admitted the claim of the plaintiff while the defendant No. 4 contested the suit, denying the allegations and inter -alia pleading that the Defendant No. 1 Jumman had sold his share in the land in dispute in his favour and that the plaintiff does not belong to the family of Faqir. The learned trial Court after completing the requisite trial, dismissed the suit of the plaintiffs, vide its judgment and decree dated 13 -8 -1979. The plaintiff went up in appeal before the learned Additional Commissioner. During the pendency of this appeal, Tulla died and his sons were substituted including Ramzan who also dies as bachelor and the respondents moved an application, stating that since no application for the substitution of the mother of the deceased was moved, the appeal abated. Another application was moved by the appellant on 4 -12 -1986 whereby some documents were sought to be admitted. The learned Additional Commissioner vide his order dated 28 -11 -1988, held that the appeal does not abate and also admitted documents Nos. 15, 16, 17 and 18 on cost of Rs. 20/ - fixing 21 -12 - 1988 for hearing of the appeal which stood dismissed vide his judgment and decree dated 20 -4 -1989. It is against these orders that the instant second appeal has been preferred by the palintiff before the Board.
(3.) I have heard the learned Counsel for the appellant and have also perused the record on file. None appeared for the respondents despite due notice and repeated calls at the time of hearing. Assailing the impugned judgments and decrees, the learned Counsel for the appellant contended that since the view, taken by the learned Court below that the principle of the entry in representative capacity is not applicable in the case of Muslims which is mainfestly illegal and perverse and the conclusion arrived at by them cannot legally be sustained in law; that the rights of the plaintiff cannot be denied as he belongs to the family of Faqir in view of the old settlement entries; that the learned Court below have committed an error of law in dismissing the suit of the plaintiff as it was neither a case of the defendant nor is there a finding in this respect that the land has been resetled or acquired by Fateh Ali; that the impugned judgment and decrees are bad in law, in view of the fact of admission in respect of the claim of the plaintiff, made by the members of the branch of Mangur, whose interest was identical to that of the defendant respondents; that since the independent witness of the plaintiff has corroborated his version and no oral evidence on behalf of the defendant respondents has been adduced, the learned Courts below have erred in law, in not considering the same and dismissing the suit; that the learned Additional Commissioner has also erred in law in rejecting the crucial documetns i. e. Fauti for the year 1931, birth -register of 1929 and various receipts, which conclusively prove the plaintiff, as a member of the family of Faqir, as his view that the same requires proof, is manifestly illegal and erroneous; that in any view of the matter, the case of the plaintiff was proved to the hilt and as such the impugned judgments and decrees, passed by the learned Courts below are illegal, perverse and without jurisdiction, which cannot be allowed to sustain and this second appeal deserves to be allowed. In support, reliance has been placed on the case law, reported in AIR 2001 SC 2802. I have closely and carefully considered the arguments, advanced before me by the learned Counsel for the appellant and have also scanned the record, on file. A bare perusal of the record on file clearly reveals that Ramzan pre -deceased his mother, Sitabi and therefore, the learned Additional Commissioner has very rightly held that the appeal did not abate, vide his order, dated 28 -11 -1988, allowing the application, dated 31 -3 -1986. So far as the admission of some papers is concerned, I also concur with the view expressed by the learned Additional Commissioner that only Document Nos. 15, 16, 17 and 18 are liable to be admitted at the appellante stage and therefore, no illegality or manifest irregularity has been committed by him, in doing so, on cost of Rs. 20/ -.;