A. Banerji, J. - (1.) THIS second appeal arises out of a judgment and decree passed by the Civil Judge, Bulandshahr, dated April 29, 1972, dismissing the appeal of the defendant-appellants. The trial court had decreed the plaintiffs' suit and cancelled the sale deed dated 22-6-1966 executed by defendant no. 1 in favour of defendant no. 2.
(2.) THE relevant facts briefly stated are as follows : Plaintiffs filed suit no. 77 of 1968 for the cancellation of the sale deed dated 22nd June, 1966 executed by Mohammad Ahmad in favour of Mohammad Arif and also for the cancellation of the Waqf deed dated 22nd May, 1965 executed by the appellant Mohammad Ahmad. Plaintiff's case was that Syed Mohammad Siddiq had created a Waqf in respect of the plots by Waqf deed dated October 11, 1943. THE appellant Mohammad Ahmad was appointd Mutwalli of the said Waqf. THE Waqf deed also provided that after the appellant Mohammad Ahmad, his two brothers would succeed him as Mutwalli. THE deed further stipulated that Mutwalli would have no right to Waqf property. During consolidation proceedings, certain plots were allotted to the Waqf in lieu of the existing plots held by the Waqf. THE appellant no. 1, Mohammad Ahmad, who had no right to sell the Waqf plots, did so in favour of appellant no. 2, Mohammad Arif on 22nd June, 1966 and he also created a separate Waqf. Plaintiffs therefore sought the relief for the cancellation of the Sale deed dated 22nd June, 1966 executed by appellant no. 1, Mohammad Ahmad in favour of appellant no. 2, Mohammad Arif, and also for the cancellation of the Waqf deed. The defendants in their written statement took up the plea that Syed Mohammad Siddiq was a Zamindar and he had created a Waqf in respect of his proprietary right and after the abolition of Zamindari in the State of Uttar Pradesh the said proprietary right came to an end and as such the Waqf also became non-est. Appellant Mohammad Ahmad was in actual possession over the disputed plots and after abolition of Zamindari he became Bhumidhar. His rights were recognised as Bhumidhar and as such he could transfer the plots to defendant no. 2, Mohammad Arif and create a separate Waqf in respect of other plots. Among other pleas it was stated that the suit was barred by Section 49 of the U. P. Consolidation of Holdings Act and the Civil Court had no jurisdiction to try the suit. Further, plaintiffs' right to file the suit was also questioned. Defendant-appellant no. 2 took up the plea that he was a bona fide purchaser for value without notice and as such his interest should be protected. The trial court came to the conclusion that Mohammad Ahmad being Mutwalli did not become Bhumidhar of the plots in dispute in his own rights and he could not transfer the suit plots to the appellant no. 2, Mohammad Arif nor could he create another Waqf. The trial court further held that the civil court had jurisdiction to try the suit and the suit was not barred by Section 49 of the Consolidation of Holdings Act. Plaintiffs' suit was decreed and the sale deed dated 22nd June, 1966 executed by Mohammad Ahmad in favour of Mohammad Arif was cancelled.
(3.) MOHAMMAD Ahmad filed an appeal in the court below. The appellate court held that the civil court had jurisdiction to try the suit. Plaintiff no. 1 was the Bhumidhar of the plots in dispute and the appellant no. 1 MOHAMMAD Ahmad did not acquire Bhumidhari rights in his personal capacity. Learned Civil Judge further held that the suit was not barred by section 49 of the Consolidation of Holdings Act. Lastly, the appellants' contention that the plaintiffs had no right to file the suit was repelled. Consequently, the appeal was dismissed as without force. Against the above judgment and decree the present second appeal was filed. The appeal-came up before me on the 11th of March, 1980. The appeal was filed by both the appellants. However, Mohammad Ahmad had died and no application had been made to bring his heirs on record. Appellant No. 2, Mohammad Arif, had not filed any appeal against the trial court decree although he had been arrayed as respondent in the appeal. I had held that he was as such not entitled to be arrayed as an appellant in this appeal. An argument was raised that he was arrayed as a legal representative of Mohammad Ahmad. This argument was repelled. Mohammad Ahmad was alive when Mohammad Arif filed the appeal. Consequently, Mohammad Arif could not be the legal representative, of Mohammad Ahmad during his life time. I had held that the appeal had become improperly constituted and Mohammad Arif had no right to file the appeal.;