ASHARFI LAL Vs. SHUSHILA DEVI

JUDGEMENT

(1.) S. N. Shukla, J. This record appeal has been filed against the judgment and decree dated 31-5-1977 passed by learned Additional Commissioner, Bareilly allowing the plaintiff's appeal and setting aside the judgment and decree dated 8-1-1973 passed by the trial Court dismissing the suit of the plaintiff in a case under Section 229-B/176 of the U. P. Z. A. and L. R. Act.

(2.) BRIEFLY, the facts of the case are that plaintiff Smt. Shushila Devi filed a suit under Sections 229-B/176 of the U. P. Z. A. and L. R. Act claiming to the daughter of Dwarika Prasad who was admittedly a co-tenant and seeking declaration that she is co-bhumidhar of Plot No. 212-A and co-sirdar of 9 plots as set forth at the foot of the plaint situated in village Sarai Talfi Pargana and tehsil Bareilly alongwith the Defendants Nos. 1 to 7. The plaintiff also claimed partition of 1/3rd share in the disputed land. The suit was contested by the Defendants Nos. 2 to 7 on the ground that notice under Section 80 C. P. C. had not been given to the State Government and that they are in adverse possession of the land in dispute for the last 19/20 years and the rights of Dwarika Prasad had extinguished. They further pleaded that Dwarika Prasad died about 16 years ago and did not leave any child and his wife Smt. Sita Devi remarried with Jhandoo and the plaintiff is the daughter from Jhandoo and is not the daughter of Dwarika Prasad; so she is not entitled to any relief. The suits is also barred by time and is barred by Section 34 of Specific Relief Act. On the pleadings of the parties; the trial Court framed issues and after affording opportunity of adducing evidence to both the parties and hearing them dismissed the suit. An appeal was filed before the learned Additional Commissioner, Bareilly, which was allowed by the order dated 31-5-1977. Hence the present second appeal.

(3.) FROM the perusal of the papers it appears the main controversy involved for the decision in this case is whether Smt. Shushila Devi was the daughter of Dwarika Prasad or of Jhandoo and whether the suit was barred by limitation. The trial Court framed an issue on the point whether the plaintiff is the daughter of Dwarika Prasad or of Jhandoo and also an issue whether the suit was barred by time. After examining the evidence on record in detail it expressed an opinion that the plaintiff was the daughter of Jhandoo and not entitled to succeed to the propety. It also found that the suit was barred by time. The learned Additional Commissioner has not specifically reversed the finding recorded by the Court of first instance to the effect that the plaintiff was the daughter of Jhandoo and not of Dwarika Prasad. The learned Additional Commissioner has based his conclusions on presumptions and surmises. He not record a proper judicial finding on these questions. The learned Additional Commissioner, has failed to raise necessary inference from the documents produced by the defendants-appellants and the conclusion arrived at by him does not appear to be based on proper appreciation of evidence on record. The question of limitation has also not been examined by the first appellate Court in a proper manner. In the circumstances of the case I find it necessary to send the case back to the Court of first appeal for deciding the appeal afresh on merits after hearing both the parties in accordance with law.