S.P.PANDEY, J. - (1.) THIS is a second appeal under Section 331(4) of the UPZA and LR Act (hereinafter referred to as the Act), preferred against the judgment and decree dated 8-3-1994, passed by the learned Additional Commissioner, Jhansi Division, Jhansi, in appeal No. 48/44 of 1991-92/Hamirpur, arising out of the judgment and decree dated 17-2-1992, 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, Badalua etc. instituted a suit under Section 229-B of the Act against the defendants, Jagrup etc. for declaration of their rights as bhumidhars of the land, in dispute, with transferable rights, inter alia pleading that they and their father were in cultivatory possession of the land, in dispute and the defendants being cunning fellows, got their names fraudulently expunged from the revenue records by giving a false reference of suit No. 516 dated 21-3-1957. On notice, the defendants contested the suit, denying the allegations and inter alia pleading that they are the sir-holders of the land in dispute and on the basis of case No. 517, dated 21-3-1957 under Section 240-G/229-B of the Act, they are recorded over the same in the revenue papers and that against the aforesaid decision, the plaintiffs did not prefer any appeal and therefore, now they have no locus standi to bring the present suit. The learned trial Court, after completing the requisite trial, held the suit barred by the principle of res-judicata and dismissed the same, vide its judgment and decree, dated 17-2-1992 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, holding the bar of res-judicata not applicable to the instant case, vide his judgment and decree, dated 8-3-1994, against which Chhabiya has now come up in this second appeal before the Board. I have heard the learned Counsel for the appellant and have also perused the record on file. None responded for the respondents despite due notice and repeated calls at the time of hearing of this second appeal. Assailing the impugned judgment and decree, the learned Counsel for the appellant contended that since the order dated 21-3-1957 passed in Case No. 516 under Section 240-G of the Act was between the parties concerned, in respect of the land, in dispute, the same is binding upon the respondents 1 to 3 and therefore, the instant suit is barred by the principle of res-judicata; that since the name of the appellant was recorded on the basis of the order dated 21-3-1957, in Case No. 516 under Section 240-G of the Act, the learned Additional Commissioner has grossly erred in creating doubt about the entries in the Khatauni 1389-94F; that the learned Court of first appeal has illegally recorded perverse finding that no order was passed in the year 1957 regarding plot Nos. 267/1.27 and 264/0.67 in case No. 516, while the fact is otherwise; that since the possession and title of the plaintiffs were not at all proved, the learned trial Court was perfectly justified in rejecting the suit of the plaintiffs and therefore, the learned Additional Commissioner has committed manifest illegality in ignoring the material evidence on record and in relying upon the oral evidence of the respondents 1 to 3; that in any view of the matter, the impugned judgment and decree is illegal, perverse and without jurisdiction which cannot, at any stretch of imagination, be allowed to sustain and therefore, this second appeal very richly deserves to be allowed in toto.
(3.) 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. The crux of the matter, in question, is whether or not the suit of the plaintiff is barred by the principle of res-judicata. This question is a mixed question of law and fact and applies under certain conditions to a suit. The learned trial Court has categorised the suit of the plaintiff, barred by the principle of the same, while the learned Additional Commissioner did not agree to it and held that such a bar would not apply to the present suit, in the facts and circumstances of the instant case. He has observed that since Case No. 516 was between Rajju Singh and Baddu, with which the present plaintiffs had no concern whatsoever nor have they any knowledge of the same, the order dated 21-3-1957 passed in case No. 516 under Section 240-G of the Act is not binding upon them and therefore, the principle of res-judicata does not apply to the facts and circumstances of the instant suit. He has dealt with the matter, in question, through and through, in an analytical and logical manner and the findings, recorded by him have been arrived at after due and proper appreciation of evidence on record, both oral and documentary, with which I entirely agree and therefore, I am not inclined to interfere with the same. The suit of the plaintiffs is clearly not barred by the principle of res-judicata and therefore, I am of the considered opinion that since no illegality or material irregularity has been committed by him in rendering the impugned judgment and decree, this second appeal, having no force, very richly deserves dismissal outright.;