GHASIYA Vs. HARBI

JUDGEMENT

(1.) THIS is a defendant's second appeal against the judgment and decree, dated 31-10-1995 passed by the learned Additional Commissioner, Jhansi Division, Jhansi, in appeal No. 61/50 of 1992, dismissing the same and confirming the judgment and decree dated 27-6-1992/9-7-1992 passed by the learned trial Court in a suit under Section 229-B of the UPZA and LR Act (hereinafter referred to as the Act).

(2.) BRIEFLY stated, the facts giving rise to the instant second appeal are that the plaintiff, Smt. Harbi instituted a suit under Section 229-B of the Act for declaration of her 1/2 share in the land in dispute, against the defendants, Smt, Ghasia etc., impleading the Gaon Sabha, concerned and the State of U.P. as defendants and inter alia pleading that on the basis of the following pedigree : as the property in dispute was self-acquired by Arjun and that in the mutation proceedings, the plaintiff failed to move any application to get herself impleaded as a party to the proceedings before the Naib-tehsildar. The learned trial Court, after completing the requisite trial, decreed the suit of the plaintiff, declaring the plaintiff as co-tenant with her half share in the land in dispute alongwith the defendants 1 and 2, vide its judgment and decree dated 27-6-1992. The defendant, Ghasia went up in appeal before the learned Additional Commissioner who has dismissed the same, vide his judgment and decree dated 31-10-1995 and therefore, it is against these judgments and decrees of the learned Courts below that the instant second appeal has been preferred by him before the Board.

(3.) I have closely and carefully considered the arguments advanced before me by the learned Counsel for the parties and have also scanned the record on file. A bare perusal of the record on file clearly reveals that both the parties, the plaintiff and the defendant, have given their own pedigrees separately. But the learned trial Court has placed reliance on the pedigree given by the plaintiff on the basis of the evidence on record. It has also held her to be a co-tenant alongwith the defendants 1 and 2 with her 1/2 share in the land in dispute. While concurring with the findings recorded by the learned trial Court, the learned Additional Commissioner has observed that in the Khatauni 1391-96F, the land in dispute is recorded in the name of Garwa and Ghasia since before 13690-F and in the Khatauni 1333-F, the name of Arjun finds place in Ziman-8 with a duration of 30 years. The names of Garwa and Ghasia are also recorded in the Khataunis 1356 and 1359-F, while in the Khatauni 1313-F, the land in dispute is recorded in the name of Mangli with a duration of 10 years and therefore, he is of the opinion that the pedigree given by the plaintiff as well as the land in dispute being the acquisition of Kadhore, the common ancestor of the parties concerned, are proved to the hilt from the evidence on record and with the passage of time, the names of other co-tenants except Arjun were left out of the the record. In the Khatauni 1393-96F in respect of other village, Lahori, the name of Smt. Harbi was ordered to be recorded in place of Gaya, deceased and therefore, from the evidence on record, it is fully established that Mangli and Arjun S/o Kadhora, were the real brothers and after their death, the land in dispute ought to have been shared by their descendants. A bare perusal of the impugned orders passed by the learned Courts below clearly reveals that they have dealt with the matter through and through in correct perspective of law. The findings of fact recorded by them have also been arrived at after due and proper appreciation of evidence on record and therefore, I also concur with the same. Since it is the settled principle of law that the findings of fact duly arrived at after due and proper appreciation of evidence on record by the learned two Courts below, cannot be upset at this second appellate stage, I am not prepared to interfere with the same moreover no substantial question of law is involved in this second appeal as such I am of the considered opinion that the same having no force, very richly deserves dismissal outright as nothing remains to be decided in it. The suit of the plaintiff for co-tenancy alongwith the defendants 1 and 2 has rather very rightly been decreed by the learned Courts below in the facts and circumstances of the instant case and therefore, no interference with the same is called for at this second appellate stage.