KESHAVA MISRA Vs. BHULAI MISHRA

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for joint possession over the land in suit. The plaintiff Kesho Misra alleged that he was the son of Ram Sumer alias Bhabha Misra. The defendant Bholai Misra is the son of Sukhdeo Misra, the brother of Ram Sumer Misra. It was contended on behalf of the defendant that Kesho Misra was not the son of Ram Sumer Misra but he was the son of Bhabha Misra who was a person other than Ram Sumer Misra. It was contended, inter alia, that the suit was barred by res judicata and by the provisions of Order 2, Rule 2, C. P. C.

(2.) Sometime prior to the institution of the present suit Kesho Misra had instituted a suit under Sections 59/61 of the U. P. Tenancy Act for a declaration that he was the son of Ram Sumer Misra alias Bhabha Misra and was the sole tenant of the land in suit. The suit eventually went to the Board of Revenue which dismissed it on the ground that the plaintiff was not the sole tenant of the land in suit and, therefore, he was not entitled to the relief claimed by him. It was further found that he was the son of Ram Sumer Misra and that as such he was a co-tenant along with the defendant Bholai Misra. The contention of the defendant that the plaintiff was not the son of Ram Sumer Misra was found to be false. It was contended before the Board of Revenue on behalf of Kesho Misra that since it had been found that Ram Sumer and Sukhdeo were brothers and the land in suit was ancestral and the plaintiff was the son of Ram Sumer the suit should not be dismissed in its entirety merely on the ground that the plaintiff Kesho Misra had claimed to be the sole tenant of the land which he had failed to prove. Reliance was placed by the learned counsel for the plaintiff on AH Raza Khan v Nawazish Ali Khan, AIR 1943 Oudh 243 and Adhilakshmi Ammal v. Nallasivan Pillai, AIR 1944 Mad 530, where it was held that

(3.) The Board, however, repelled the contention of the plaintiff on the ground that since the plaintiff had claimed to be the exclusive bhumidhar of the plots in suit he should not be allowed to turn round and allege that he should be given co-tenancy rights it he was not found to be the sole tenant of the land. The Board, however found that there was evidence to show that Ram Sumer and Sukhdeo held the land jointly and Ram Sumer died leaving the plaintiff Kesho Misra, his son, and hence the plaintiff-appellant should have been the co-tenant of the land in suit along with Sukhdeo.