S.P.PANDEY, j. - (1.) THIS is a second appeal under Section 331 of the UPZA & LR Act (hereinafter referred to as the Act), preferred against the judgment and decree dated 22-11-1994, passed by the learned Additional Commissioner, Faizabad Division, Faizabad, in appeal No. 339-Bahraich, dismissing the same and confirming and upholding the judgment and decree dated 26-4-1994, 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 plaintiff, Surendra Prasad instituted a suit under Section 229-B of the Act against the defendants, Ram Hit etc. for declaration of his rights as bhumidhar of the land, in dispute, with transferable rights. During the pendency of this suit, on 22-4-1994, an application was moved by the defendants for deciding issue No. 3 as preliminary issue. The learned trial Court, vide its judgment and decree dated 26-4-1994, held the suit of the plaintiff not maintainable and dismissed the same, accordingly against which the plaintiff went up in appeal before the learned Additional Commissioner, who has dismissed the same, vide his judgment and decree dated 22-11-1994 and therefore, it is against these judgments and decrees that the instant second appeal has been preferred by the plaintiff 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 and therefore, the case proceeded ex parte. Assailing the impugned judgments and decrees, the bone of contentions of the learned Counsel for the appellant are-firstly, that since correction in the array of parties has already been allowed by the learned trial Court, it grossly erred in dismissing the suit of the plaintiff as not maintainable; secondly, that when correction of the plaint was granted by the Court, concerned, it ought to have decided the matter, in question, on merits, according to law, especially when the learned Counsel for the other side had since received the cost, imposed and therefore, the impugned judgments and decrees, passed by the learned Courts below are illegal, perverse, bad in law and without jurisdiction, which cannot, at any stretch of imagination, be allowed to sustain and this second appeal very richly deserves to be allowed and the suit of the plaintiff to be decided on merits, according to law.
(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 suit of the plaintiff was dismissed by the learned Court of first instance, as not maintainable, on the ground of the same being filed against dead persons as well as non-payment of cost of Rs. 20/-. Concurring with this finding, the learned Additional Commissioner has categorically observed that since the matter, in question, involves point of jurisdiction as well as maintainability of the suit of the plaintiff, the learned trial Court, in the facts and circumstances of the instant case, did not commit any error of law in deciding issue number 3 as preliminary issue. Both the learned Courts below have dealt with the matter, in question, analytically and logically and therefore, I am fully convinced that no illegality or material irregularity in the exercise of their jurisdiction has been committed by the learned Courts below, in rendering the impugned judgments and decrees and as such, the contentions of the learned Counsel for the appellant, in the facts and circumstances of the instant case, are rather untenable for the same reason and therefore, this second appeal, having no force, very richly deserves dismissal outright.;