RAM DULAREY Vs. BARSATI

JUDGEMENT

(1.) This is a plaintiffs second appeal arising out of a suit under Sec. 59/180 of the U.P. Tenancy Act filed on July 21, 1966 which was decreed in favour of the plaintiff Ram Dularey by the learned trial court on Sept. 9, 1976 but the trial court decree was set aside by the learned Additional Commissioner by his judgment dated June 6, 1980.

(2.) I have heard the learned counsel for the parties and have also perused the record.

(3.) The land in dispute is plot number 561 area 18 acres which was the hereditary tenancy of Mst. Sarjudevi. She expired about 1959 and after her, the name of her husband Budhram was mutated. Budhram also expired in 1962. The plaintiff Ram Dularey claims to be the adopted son of Budhram and Sarjudevi and having lived with them front the age of 5 years continuously claimed to have come in possession of the land after the death of Sarjudevi. The natural father of Ram Dularey is Sanwali and is the son of Sarjudevi's sister. Sanwali and Ram Dularey both had been living with Budhram and Sarju Devi since about 10 years before vesting. The plaintiff's case is that he inherited the land as adopted son of Budhram and also had perfected his rights by adverse possession, while the defendant claimed title on the basis of heir-ship as nephew of Budhram. The learned trial court held that the plaintiff is the adopted son of Budhram and has been in possession and so became hereditary tenant of the land in suit: The learned Additional Commissioner, Faizabad Division, Faizabad, however, did not accept the adoption of Ram Dularey for the reasons that the ceremony of adoption did not take place, that a son having precedence over husband, the mutation in favour of Budhram shows that there was no adoption and that the parentage of Ram Dularey was given mostly as Sanwali which also showed that Ram Dularey was not the adopted son of Budhram. The learned Additional Commissioner, however, has not considered the oral evidence on the point of possession and gave a finding that the plaintiff had not completed the necessary period of adverse possession to mature his rights.