SATYABRAT SINGH Vs. MAHENDRA DEO SINGH

JUDGEMENT

(1.) THIS second appeal has been filed against the order of the learned Additional Commissioner dated 21-8-98 by which the learned Additional Commissioner has dismissed the appeal filed against the order dated 27-7-96 passed by SDO Kaisarganj.

(2.) BRIEF facts of this case is that a suit under Section 229-B/176 of the UPZA and LR Act was filed regarding khata No. 129 Ka and Kha total area 4.67 acres. It was stated in the plaint that the disputed land was acquired by joint family fund and the disputed land is the joint family property. It was also stated that Manbodh Singh and father of defendants No. 1 and 2 Satya Narain Singh have jointly purchased the disputed land. The disputed land was recorded wholly in the name of Satya Narain Singh in a representative capacity. It was also stated that at the time of acquisition of the disputed property the family was joint and the disputed land was acquired from the joint family fund and both plaintiffs have defendants have 1/2 share each in the disputed land. After the death of defendant's father plaintiffs and defendants are in possession over the disputed land. The suit was decreed by the learned trial Court vide his order dated 27-7-96 and half of share in the disputed khata No. 129 Ka and Kha was declared in favour of the plaintiff and half of the disputed land was declared in favour of the defendants. Being aggrieved by this order an appeal was preferred which was dismissed by the learned Additional Commissioner against which this second appeal has been preferred by Satyabrat Singh.

(3.) THE learned Counsel for the appellant has argued that it has been alleged in the plaint that the disputed land is acquired in 1360-F and the suit was filed after a lapse of thirty (30) years. It was also stated that the consolidation proceedings have been concluded and the suit is barred under Section 49 of the UPCH Act, because the plaintiff-respondents have not filed any claim before the consolidation authorities and the disputed land was recorded in the name of the father of the appellants during the consolidation proceedings. It has also been argued that the respondents have failed to prove that the disputed land was acquired by the joint family fund and they have also failed to prove that when the land was acquired the family was joint. It was also argued that when there is no evidence regarding the joint acquisition it will be presumed that the land was acquired solely. It was also argued that only living in house in the year 1960 does not prove the jointess of the family. The appellants have cited 1990 RD 439 and it has been argued that even in case of co-tenancy Section 49 of the UPCH Act will not apply. It was also argued that the learned Additional Commissioner has not given his finding regarding the bar of Section 49 of the UPCH Act.