Imrat Singh vs Ram Singh

N.S. Ravi, Member.

This second appeal has been filed against the judgment and decree dated 2961995 passed by learned Additional Commissioner, Jhansi Division in Appeal No. 152/14 of 9293 by which order the judgment and decree passed by trial Court in Suit No. 31/9091 under Section 229B of the U.P. Z.A. and L.R. Act has been set aside.

From the records of the case it appears that the appellant Chaturbhuj filed a declaratory suit before the S.D.O. Talbehat District Lalitpur in relation to Plot No. 3213/0.20 acre, 3452/0.16 acre 3453/0.03 acre and 654Min/O.20 acre, on the basis that in the revenue records the name of the appellant was recorded alongwith fathers of the respondents upto 1362F but due to some mistake or connivance his name was deleted in 1363 to 1365F. The learned trial Court after examining the evidence on record and the oral evidence adduced, partially decreed the suit. Against this order of the trial Court first appeal was preferred before the Commissioner Jhansi Division by the respondents Ram Singh and others which was allowed by order dated 2961995. The Instant second appeal has been filed against this impugned order by Chaturbhuj.

The first appellate Court allowed first appeal on the basis that since Chaturbhuj's name does not appear in the Shajra Khandan of the respondents therefore he could not have been cotenure holder and secondly that he has filed the declaratory suit after 40/45 years of the said deletion of his name from the revenue records.

Before this Court the appellant Chaturbhuj has filed a copy of a registered will in his favour a longwith its Hindi translation. It appears from the said will that one Smt. Maharani widow of Nandu whose name appears in the Shajra Khandan of the respondents, after death of her husband has made a will in favour of the appellant and on that basis the name of the appellant was recorded as cotenure holder in revenue records. This said will appears to be made on 121130 and registered on 131130.

The copy of the will which is a registered document, is a material evidence which should have been taken into account by the trial Court is well as the first appellate Court. Therefore in the interest of justice it will be in the fitness of things that this material document is examined at the level of trial Court.

As a result, the orders passed by the trial Court as well as first appellate Court are set aside. The case is remanded to the trial Court for fresh appraisal of the evidence and passing order after giving full opportunity to the parties concerned.