RAM ASREY Vs. SHIV KUMAR

JUDGEMENT

(1.) THIS revision has been filed against the judgment and order dated 19-6-1998 passed by learned Additional Commissioner, Jhansi in Appeal No. 11/7 of 1996-97 arising out of a case 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 maintained the judgment and decree dated 30-11-1996/6- 12-1996 passed by S.D.O. Maudaha District Hamirpur in Suit No. 18/1996.

(2.) BRIEFLY the facts of the case are that Ram Asrey and three others instituted a suit against Sheo Kumar and others for the declaration that they were co-tenants alongwith the Defendant Nos. 1 to 7. The case setup by the plaintiffs was that Sadhwa the common ancestor had five sons; that the family of the parties constitute a joint Hindu family; that Dasartha, Ram Prasad, Bhagwandin and Sheonath had died; that Chuntoo had been married to Smt. Kutti, that after the death of Chuntoo; Smt. Kutti remarried with Bhagwandin, younger brother of Chuntoo; that Bhagwandin had his legally wedded wife and out of this wedlook Ram Kishun, Shyam Lal and Gayadin were born and Sheo Kumar was born with the union of Smt. Kutti with Bhagwandin; that as the family constitute a joint Hindu family Bhagwandin and Sheo Kumar continued to be the owner in possession of the land in question as heir of Chuntoo and that the plaintiffs are co-tenants along with the Defendants No. 1 to 7; that by mistake the name of Kutti continued to be recorded and after her death the name of the Defendant No. 1 is recorded in a Farzi way. The plaintiffs claim to be the contents of the land in question alongwith the Defendant Nos. 1 to 7. The defendants contested the suit alleging that Smt. Kutti continued to remain as owner and in possession of the property of her former husband and hence on her death the land went to the defendants. It was also pleaded that the present suit was barred by Section 49 of the U.P.C.H. Act. The trial Court did not frame any issue. It, however, heard the parties and held that the plaintiff could not succeed in proving that the land in question was ancestral tenancy and that the suit was barred by Section 49 of the U.P.C.H. Act. It dismissed the suit. On appeal, the learned Additional Commissioner upheld the order and dismissed the same. Hence the present revision.

(3.) THE fact that Sadhwa was the common ancestor of the parties is not disputed. It is also not disputed that the family constitute a joint Hindu family. The land in question belong to Chuntoo. Smt. Kutti, widow of Chuntoo remarried Bhagwandin after the death of Chuntoo. When Smt. Kutti remarried Bhagwandin, the land would go to the brother of Chuntoo, who were alive at the time of his death. As Smt. Kutti remarried Bhagwandin who happened to be the brother of Chuntoo deceased and of Sheonath, succession would go to the brothers of the deceased. The name of Smt. Kutti, however continued to be recorded in revenue papers. This would, however, not change the legal position particularly because of the fact that Smt. Kutti was the wife of one of the brothers was deceased. It is settled principle of law that any matters relating to co-tenancy bar of Section 49 of U.P.C.H. Act does not apply. The trial Court and the learned Court of first appeal fell into legal error in taking the view tht the present suit is barred by Section 49 of the U.P.C.H. Act. In the circumstances of the case Smt. Kutti could not be presumed to have continued to remain in possession of the land in her own rights after her remarriage with Bhagwandin who was the brother of Sheonath. From the evidence on record it is established beyond any shadow of doubt that the property remain to Joint Hindu family and all of them are co-tenants of the land in question. The Courts below have erred in law in dismissing the suit.