RAHMULLAH Vs. NOOR HASAN

JUDGEMENT

(1.) THIS second appeal has been filed against the judgment and decree dated 9-12-1988 passed by learned Additional Commissioner, Varanasi Division, passed in Appeal No. 372/71 of 1987 District Ballia arising out of a suit under Section 299-B of the U.P.Z.A. and L.R. Act. By the impugned order the learned Additional Commissioner allowed the appeal, set aside the judgment and decree dated 27-2-1987 the passed by Assistant Collector, First Class Ballia and dismissed the suit.

(2.) BRIEFLY the facts of the case are that Rahmullah and others instituted a suit for the declaration that they were co- bhumidhars of the land in question along with the defendants. They pleaded that the plaintiffs and the defendants belong to the same branch of the family, that the land in question was the property of the plaintiffs and the defendants, that the land in question had been acquired by common ancestor of the parties, that on the death of the plaintiff's father, the name of the defendant Nos. 1 and 2 alone was recorded in papers as Karta Khandan but both the parties continued to be in possession over the land in suit, that the plaintiffs are entitled to the decree claimed. Noor Hasan and others contested the suit denying the right and title of the plaintiffs. Moti Chandra Tewari claimed himself to be the tenure holder of the land in question. The trial Court framed issues and after giving both parties an opportunity of adducing evidence and of being heard. It decreed the suit. On appeal, the learned Additional Commissioner allowed the same and set aside the order of the trial Court. Feeling aggrieved by this order Rahmullah and others have come up in second appeal.

(3.) A perusal of the record makes it abundantly clear that the plaintiffs had failed to substantiate their version. Their claim was based mainly on the entry of Ziman 6 in 1345-F. In 1345 F. Buddhan Mian and Ganesh Tewari are recorded in Ziman 10-A in Khatauni. It is important to note that after 1345-F and before 1356-F there was no entry to substantiate the claim of the plaintiff. The entry of 1356-F is in the name of Shamshuddin and Qamar Uddin. In these circumstances the learned Additional Commissioner, correctly observed that there was nothing to indicate that the names of all the sons of Buddhan Mian were recorded on the land in question. According to him as there was no entry of 1345-F the land would be deemed to be fresh acquisition of Shamshuddin and Qamaruddin and other; Since Buddhan Mian would have no right in the land in question. The learned Additional Commissioner also observed that two persons could not be treated to be Kartas of the Khandan. The learned Additional Commissioner after considering the material on record found that the land in question would be deemed to be the self acquired property of Shamshuddin and Qamaruddin and the plaintiffs have nothing to do with that land. He has rightly opined that mere entry in Ziman 10-A in 1345-F Khatauni in the name of Buddhan Mian would not entitle him and his sons to get any share in the land in question. The learned Additional Commissioner has passed a correct decree and there is no justification to interfere in the second appeal.