SUMERA Vs. LATAURA

JUDGEMENT

(1.) THIS Second appeal has been filed by Sumera against the judgment and decree dated 15-7-1995 passed by learned Additional Commissioner, Jhansi in Appeal No. 55/131 of 1992-93 district Hamirpur arising out of a suit under Section 229-B of the U.P.Z.A. and L.R. Act. By the impugned order the learned Additional Commissioner dismissed the appeal and confirmed the order dated 30-6-93 passed by the trial Court in suit No. 4 of 92.

(2.) BRIEFLY the facts the case are that Sumera son of Jagannath instituted a suit for declaration of his rights. He pleaded that he and his brother Gariba continued to be in possession over the land in question for the last 30 years, that Gariba died about 5- 6 years back and that the plaintiff had acquired rights by being in continuous as adverse possession for over 12 years. He averred that the previous suit filed by Shatrughan Singh, Uttam Singh, Rajendra Singh and Rama Singh son of Gariba which was dismissed on 21-6-1989 did not effect the rights as in that suit he had been shown as a dead person. The defendants contested the suit denying the right and title of the plaintiff. He submitted that his father Ghanshyam and his cousin were recorded as tenure-holders and that he is now the sole tenant of the land. He further submitted that the suit brought by the nephews of Sumera which had been dismissed, barred the present suit by the principles of res-judicata. The trial Court dismissed the suit. The learned Additional Commissioner found that the present suit was barred by the principles of res-judicata. He agreed with the learned trial Court and dismissed the appeal. Hence the present second appeal.

(3.) FROM the evidence on record it is obvious that the land in question was recorded in the name of Ghanshyam and Ramrati daughter of Ghaturaiya in Khatauni 1369 to 1371 Fasli. The present plaintiffs claimed to have acquired rights by being in continuous adverse possession for over 12 years alongwith Gariba. Gariba is said to have died 5-6 years back from the date of the institution of the suit i.e. sometimes in the year 1986 or 1987. After the death of Gariba his sons Shatrughan Singh and others instituted a suit under Section 229-B of the U.P.Z.A. and L.R. Act against the present defendant which was dismissed on 21-6-89. It has been stated that the plaintiff Sumera had been shown to be dead in that suit. The learned Additional Commissioner considered the material on record and observed that the suit filed by the person alongwith whom plaintiff Sumera claimed to have acquired rights by adverse possession having been dismissed, the present plaintiff Sumera could not bring a fresh suit for the same cause of action. The learned Additional Commissioner was justified in holding that the suit was barred by principles of res-judicata. He agreed with the view of the learned Additional Commissioner and dismissed the appeal. A perusal of the judgment of the learned trial Court also show that the trial Court had discussed the question whether the plaintiff had acquired rights by being in adverse possession in issue No. 1 and had returned a finding in negative against him.