S.P.PANDEY - (1.) THIS is a second appeal under Section 331 of the UPZA and LR Act (hereinafter referred to as the 'Act') preferred against the judgment and decree dated 15-3-1996, passed by the learned Additional Commissioner, Jhansi Division, Jhansi in appeal No. 62/281 of 1992-93/Lalitpur, allowing the same and reversing the judgment and decree, dated 20-2-1993/1-3-1993 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, Vir Singh etc. instituted a suit under Section 229-B of the Act against the defendants, declaration of their rights as bhumidhar in possession of the land in dispute with transferable rights and expunction of the name of the grand-father of the defendant Nos. 3 to 5, Ram Nath and defendants 6 and 9 from the revenue records, inter alia pleading that since in 1359-F, the land in dispute was recorded in the name of the grand-father of the plaintiffs, Khub Singh and after him, his three sons, the Lekhpal concerned inadvertently made an entry of the name of the grand-father of the defendants 3 to 5 and defendant No. 9 illegally, without any order of the competent authority; that the defendant Nos. 3 to 6 have no concern with the land in dispute nor are they in possession thereof; that Ram Nath had no right to transfer the land in dispute in favour of the defendant No. 9, Hari Shankar and the sale-deed in question is void and a nullity. On notice, the suit was contested by the State and the defendant No. 9, denying the allegations and inter alia pleading that since the defendant No. 9 purchased 1/2 share from Ram Nath for consideration through a registered sale-deed, he is in cultivatory physical possession of the same; that the remaining 1/2 share is in possession of Ganga Bai. The learned trial Court, after completing the requisite trial, dismissed the suit of the plaintiffs, vide its judgment and decree dated 20-2-1993 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 15-3-1996, thereby decreeing the suit of the plaintiff and hence this second appeal by Hari Shankar before the board. I have heard the learned Counsel for the parties and have also perused the record on file. Assailing the impugned judgment and decree, the learned Counsel for the appellant contended that since the learned Court of first appeal has wrongly and illegally relied upon the judgment dated 28-7-1992 passed by the learned Additional Commissioner which was in respect of plot No. 1265/0.75 whereas the land in dispute is Plot No. 1269/77, the impugned judgment is bad in law; that since the grand-father of the plaintiffs 1 and 2, Khub Singh had executed a lease dated 29-7-1949, in favour of Ram Nath, the executant of sale-deed in favour of Hari Shankar and Mst. Hazari Dulaiya, mother of Ganga Bai, they became adhivasi and thereafter bhumidhar by prescription of law and therefore, Ram Nath had every right to transfer the same in favour of the defendant No. 9; that since in 1356, 1359 and 1362-F, the names of Ram Nath and Ganga Bai were recorded, they acquired rights and became sirdar and bhumidhars of the land in dispute; that since the plaintiffs are not in possession of the land in dispute,the finding in this respect recorded by the learned Additional Commissioner is perverse; that since Ram Nath had executed a registered sale-deed in favour of the appellant, he has acquired rights through the same and therefore, his name is correctly recorded in the revenue records; 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. The learned Counsel for the respondent, in reply, urged that since vide judgment dated 28-7-1992 passed by the learned Additional Commissioner in first appeal No. 58/39 of 1991-92, the rights of Ram Nath were finally adjudicated upon which will certainly operate as constructive res judicata, he had no right to transfer,the land in dispute in favour of the appellant as his name was wrongly and illegally recorded in the revenue records without any order of the competent authority and hence the transfer in question is illegal and void ab initio and therefore, 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,as they belong to the family of Khub Singh and as such this second appeal, having no force, very richly deserves dismissal outright.
(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 crux of the matter in the instant case is whether or not the name of Ram Nath was correctly recorded as per rules on the subject, on the basis of which he transferred the land in dispute in favour of the appellant. As a matter of fact, his name is recorded in the Khataunis without any order of the competent authority. In 1356-F, the name of Khub Singh, the grand-father of the plaintiffs is recorded over the land in dispute while in 1359-F, the name of Ram Nath is entered without any order of the competent authority and therefore, the entry of his name is clearly illegal on the basis of which no rights could accrue to him to transfer the land in dispute in favour of the appellant. A copy of the judgment dated 28-7-1992 passed by the learned Additional Commissioner in appeal No. 58/39 of 1991-92/Lalitpur is on the record. Although this judgment relates to plot No. 1265 but the facts and the issue involved are similar to that of the instant case. It has been finally adjudicated upon by the learned Additional Commissioner that since the name of Ram Nath suddenly appeared in the Khatauni 1359-F, without any basis therefore, the entry of his name is illegal on the basis for which Ram Nath had no rights to transfer the land in dispute and therefore, I agree with the view expressed by the learned Counsel for the respondent that this finding will operate as constructive res judicata to the instant case. The learned Additional Commissioner has dealt with the matter in question through and through logically and analytically in correct perspective of law and the findings which have been arrived at after due and proper appreciation of evidence on record, are also in order and sound in law with which I entirely agree. No illegality or material irregularity has either been committed by him. Since the name of Ram Nath was recorded without any order of the competent authority, the claim of the appellant falls to the ground and therefore, I am of the considered opinion that no interference is called for with the impugned judgment and decree passed by the learned Court of first appeal and as such this second appeal, having no force, very richly deserves dismissal outright.;