JUDGMENT

H.N. Agarwal, Member. - This is a second appeal against the order and decree dated April 14, 1972, passed by the Additional Commissioner, Allahabad Division, in appeal No. 51/77 of 1970-71.

2. I have heard the learned counsel for the appellant and the learned counsel for the Nagar Mahapalika, Kanpur and have gone through the record. The remaining respondents have not appeared to contest the appeal in spite of due service.

3. Respondent No. 1, Smt. Maqsoodjahan Begum Paliwal had filed a suit claiming to be Bhumidhar of plot No. 940 situated in village Chanderi on the basis of a registered sale deed dated October 27, 1960, executed in her favour by the previous Bhumidhars, Sri Rameshwar Nath Tandon and his son Prithvi Nath Tandon, respondent No. 2, She sought the ejectment of Raja Singh, defendant-appellant as a trespasser from the land in dispute. Raja Singh contested the suit on the ground that he himself was in possession of the disputed property as Bhumidhar on the Basis of a sale deed executed in his favour on October 23, 1961 by Hira Lal Khanna and that Hira Lal Khanna was in possession of the disputed property from October 7, 1960 on the basis of a sale deed executed in his favour and that any subsequent alleged sale deed dated October 27, 1960 in favour of the plaintiff was illegal and infructuous. Both the courts below had decreed the suit. Raja Singh has now come up in second appeal.

4. The grounds taken in the second appeal are that the lower appellate court has ignored the provisions of Appendix III framed under Rule 338 of UPZA and LR Rules 1952 while confirming the decree of the trial court, that the lower appellate court has failed to appreciate the evidence on record of the case, that the finding that the appellant is not a Bhumidhar but a trespasser is erroneous and in clear violation to the provisions of Section 130 of the UPZA and LR Act, that the lower appellate court has ignored the provisions of Section 114 of the Evidence Act, that the lower appellate court has failed to appreciate the law laid down in the ruling of the Board of Revenue in 1971 RD 160, that there is substantial error in framing issue No. 1 and assuming jurisdiction by the trial court in contravention to the provisions of Section 331-A and finally, that the sale deed executed by Babu Lal, the General Agent of Rameshwar Nath Tandon, in favour of the appellant is valid and legal and must prevail over the sale deed subsequently executed by Sri Rameshwar Nath Tandon and his son Prithvi Nath Tandon.

5. It is proved from the extract of the Khatauni as well as the original Bhumidhari Sanad of February 4, 1956 that Rameshwar Nath Tandon and his son Prithvi Nath Tandon were Bhumidhars of the land in suit. The registered sale deed executed by them in favour of Smt. Maqsood Jahan Begum Paliwal on October 27, 1960 is on record. As against it, the appellant had filed the sale deed executed in his favour for the same land by Hira Lal Khana on October 23, 1961. But Hira Lal Khanna is not the original Bhumidhar himself. In the sale deed itself he claims to have purchased the land from a sale deed executed by one Babu Lal Goel on October 7, 1960 in his capacity as the Mukhtar of Rameshwar Nath Tandon. There is nothing on record to show that Babu Lal Goel possessed the authority to execute the sale deed on behalf of Rameshwar Nath Tandon and Prithvi Nath Tandon. Further it is not even alleged that Babu Lal Goel was the Mukhtar of Prithvi Nath Tandon as well. In the circumstances, the courts below have held that the sale deed executed by the rightful owners would prevail over a sale deed executed by a person claiming title merely on the basis of another sale deed by a Mukhtar or Agent. The ground that the provisions of Appendix III framed under R. 338 of the UPZA and LR Rules, 1952 have been ignored has no substance at all. The plaint shows that the defendant appellant asserted his right to possess and refused to deliver possession of the land in suit