S.P.PANDEY, J. - (1.) THIS is a second appeal under Section 331(4) of the UPZA & LR Act (hereinafter referred to as the Act), preferred against the judgment and decree dated 14-2-2000/15-2-2000, respectively, passed by the learned Additional Commissioner, Jhansi Division, Jhansi, in appeal No. 82/57 of 1997, Mukundi etc. v. Guru Dayal etc., arising out of the judgment and decree dated 28-7-1997, 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, Mukundi etc. instituted a suit under Section 229-B of the Act against the defendants, Guru Dayal etc. for declaration of their rights as co-tenants and bhumidhars of the land, in dispute, with transferable rights, inter alia pleading that the land, in dispute, being ancestral in which they have 1/3 share and 1/12 share separately has the defendants, was recorded in the name of their father, Dharma before the abolition of zamindari in 1346-F and 1359-F, alongwith Arjun and Behari, ancestors of the defendants but due to the mistake of the lekhpal, concerned, the same was solely recorded in the names of the ancestors of the defendants in 1360-F and the name of Dharma was left without any order of the competent authority and that thereafter, his name continued to be left from being recorded in the revenue records, which ought to have been recorded, accordingly and that since the plaintiffs are the descendants of Dharma, who has not transferred his title to the land, in dispute, to anybody, they are legally entitled to their share and such state of affairs may lead to unnecessary complications and therefore, the cause of action arose. On notice, the defendants contested the suit, denying the allegations and inter alia pleading that since the name of the father of the plaintiffs was expunged from being recorded in 1951, the plaintiffs have no claim whatsoever. The learned trial Court, after completing the requisite trial, dismissed the suit of the plaintiffs, vide its judgment and decree, dated 28-7-1997 and therefore, the plaintiffs went up in appeal before the learned Additional Commissioner, who has allowed the same and reversed the judgment and decree, passed by the learned trial Court, vide his judgment and decree, dated 14-2-2000 and as such, it is against this judgment and decree that the instant second appeal has been preferred by the defendants before the Board. I have heard the learned Counsel for the appellant as well as the respondents and have also perused the record on file. Assailing the impugned judgment and decree, the main thrust of the contentions of the learned Counsel for the appellant are that since the plaintiffs have bitterly failed to establish their claim by evidence, both oral as well as documentary, the same was rightly rejected by the learned trial Court and the learned Court below has wrongly and illegally conferred rights upon the plaintiffs over the plots for which bhumidhari sanad was issued in favour of the appellants and that the observation of the learned Court of first appeal, in respect of no necessity of any suit or proceedings for the correction or mutation after the death of Dharma, without applying the provisions of Order XLI Rules 26 and 27 CPC, is pulpably wrong and erroneous, especially when the physical possession was not proved by the plaintiffs, resulting in the miscarriage of justice, without due and proper appraisal of evidence on record. In support, reliance has been placed on the case laws, reported in 1999 RD 777; 2001 RD 158; 1998 RD 651; 1997 RD 103. The learned Counsel for the respondent, in reply, urged that in the facts and circumstances of the instant case as well as the evidence on record, the learned Additional Commissioner was perfectly justified in decreeing the suit of the plaintiffs and reversing the judgment and decree of the learned trial Court and therefore, this second appeal, having no substantial question of law involved, very richly deserves dismissal outright. In support, reliance has been placed on the case law reported in 1993 RJ 26.
(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. The claim of the plaintiffs is based upon their plea that due to some inadvertence of the lekhpal, concerned, the name of Dharma was left over from being recorded in the revenue records with effect from 1362 F and since he became bhumidhar in 1356 F, his rights and title could not extinguished due to the lapse on the part of the lekhpal concerned. It is also apparent from a perusal of the record on file that the suit of the plaintiffs was thrown out, since they failed to prove their possession as well as to take initiative in respect of mutation of their names and to take steps for the correction of the records, as per the view of the learned trial Court. On the other hand, the learned Additional Commissioner has dealt with the matter, in question, through and through logically and analytically in depth and correct perspective of law, observing that the suit was not barred by Section 34(5) of the UPLR Act. It is a fact that in 1359F, the name of Dharma was recorded and thereafter, abruptly, the same disappeared from the revenue records, without any order of the competent authority. It is also true that no transfer or surrender of rights or title ever took place and therefore, such state of affairs does not, in any way, extinguish the rights and title of the plaintiffs. The findings of fact, recorded by him, have been arrived at after due and proper appreciation of evidence on record with which no interference is called for by this Court at this second appellate stage. No illegality or irregularity has either been committed by him nor is any substantial question of law involved in this second appeal. The matter, in question, has already been thrashed out in its right perspective and therefore, I am fully convinced that the suit of the plaintiffs has rather very rightly been decreed by the learned Court of first appeal. Since nothing remains to be decided in this second appeal, I am of the considered opinion that the same, having no force, very richly deserves dismissal outright, as the plaintiffs have come out successfully in establishing their claim.;