Rakesh Bahadur, Member:— This second appeal under section 331 of the U.P.Z.A & L.R Act (hereinafter referred to as the Act) has been directed against the judgment and decree dated 31.10.1998 passed by the learned Additional Commissioner, Lucknow Division, Lucknow in Appeal No. 408 of 1994-95, reversing the judgment and decree dated 24.7.1995 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, Ram Chandra etc. instituted a suit under section 229-B of the Act for declaration of their rights as co-tenant of the land in dispute, along with the defendants 1 and 2, disclosing the following pedigree:
and inter-alia pleading that they are the bhumidhar of the land in dispute in culti-vatory possession thereof with ⅓ share and after the death of his father, Babu Ram, who was a co-tenant along with the defendants 1 and 2, Anant and Gulab, they stepped into his shoes and also became a co-tenant along with them; that during consolidation, the defendants 1 and 2 got their names fraudulently recorded in collusion with the authorities concerned by concealing the facts and despite the same, their father remained in cultivatory possession of his ⅓ share in the land in dispute; that the original tenure-holder of the land in dispute was their maternal grand-father, Subba and the plaintiffs and defendants 1 and 2 were his sole heirs; that the cause of action arose when the defendants 1 and 2 insisted them to vacate the land in dispute. On notice, the defendants contested the suit, denying the allegations and inter-alia pleading that Nokhey Had three sons viz. Nanga, Anant and Gulab and during consolidation, since Nanga died, Subbai, their maternal grand-father got the names of Anant and Gulab recorded on his land in dispute as Babu Ram was not his son. The learned Trial Court, vide its judgment and decree dated 24.7.1995, decreed the suit of the plaintiff. In appeal, the learned Additional Commissioner, vide his judgment and decree dated 31.10.1998, reversed the decree of the learned Trial Court and therefore, it is against this order and decree that the instant second appeal has been preferred by Ram Chandra before this Court.
3. I have heard the learned Counsel for the appellant and have also perused the record on file. Since none responded for the respondents on 5.12.2008 despite due notice and repeated calls, the case was ordered to proceed ex-parte. On the pleadings of the parties, following substantial question of law emerges out for decision by this Court in this second appeal:
“Whether or not the learned Court below was justified in reversing the order of the learned Trial Court in correct perspective of law?”
4. Assailing the impugned order, the bone of contentions of the learned Counsel for the appellant inter-alia, in a nut-shell, are that since the father of the plaintiffs, Babu Ram being the daughter's son of Subba, was his heir within the meaning of section 171 of the Act, the learned Court below has grossly erred in misconstruing the provisions of law; that since Babu Ram, Anant and Gulab were real brothers, they were co-tenants of the land in dispute with ⅓ share each and therefore, the learned Additional Commissioner was not at all justified in holding otherwise; that since Babu Ram was alive at the time of mutation of the names of the defendants 1 and 2 during consolidation operations and the orders were obtained by playing fraud and concealing the facts, the learned Trial Court was perfectly justified in decreeing the suit of the plaintiffs and therefore, without adverting the reasons and findings recorded by it, the impugned order rendered by the learned Court below is clearly without jurisdiction, which cannot, at any stretch of imagination, be allowed to sustain in law.
5. I have carefully considered the arguments advanced before me by the learned Counsel for the appellant and have also scanned the papers on file.
6. As a matter of fact, the suit of the plaintiff was decreed by the learned Trial Court on the ground that since the orders of the consolidation authorities, having been obtained by playing fraud and concealing the facts, were farzi, the same is not barred by section 49 of the UPCH Act. It has been specifically observed that the order of consolidation was passed in 1964 while as per the version of the defendant No. 1, the father of the plaintiff died 6, 7, 8 years before and had the State of affairs been in his knowledge, he would have taken steps accordingly to get his rights. Contrary to this, the learned Additional Commissioner appears to have swayed away on flimsy grounds in holding(1) that since land in dispute was not ancestral, the suit for co-tenancy was legally not maintainable/(2) that the plaintiffs were not the successors under section 171 of the Act on the basis of their being maternal grand-sons of Subba. The learned Trial Court has, in fact, analytically and logically dealt with the matter in question at depth and after analyzing the evidence on record, has rightly decreed the suit of the plaintiff in correct perspective of law. As per the settled principle of law, if the orders of the consolidation Courts were obtained by playing fraud or concealling the facts, the provisions of section 49 of the UPCH Act would not come into play and the suit would not be barred by such provisions of law. It has come on the record that at the time of consolidation, Babu Ram was in jail and was released from it after 10 years and therefore, the question of his taking steps during the consolidation operations does not arise. So far as the question as to whether or not Babu Ram was the real brother of Anant and Gulab is concerned, it would suffice to mention here that the defendant No. 1 and his witnesses themselves proved this fact. It is also noticeable that although the defendants claimed a will executed in their favour by Subba which was available with them, the same was never produced before the Court. It is an admitted case of the parties that the original tenure-holder was Subba. Under section 171(h) of the Act, daughter's son is a successor of his maternal grand-father. Since no evidence has been led to prove to the hilt that Babu Ram was not real maternal grand-son of Subba, the learned Trial Court, in the facts and circumstances of the instant case, was perfectly justified in decreeing the suit of the plaintiff since they have fully substantiated their claim. No illegality or material irregularity in the exerciser of its jurisdiction has either been committed and therefore, the learned Court below was not at all justified in reversing its decision and as such, the impugned order being illegal, perverse and without jurisdiction, is liable to be set aside.
7. In view of the above this second appeal succeeds and is, accordingly, allowed and the impugned order passed by the learned Additional Commissioner is hereby quashed. Let records be returned forthwith to the Courts concerned.
8. Appeal Allowed.