MANGAL CHANDRA Vs. ABDUL KARIM

JUDGEMENT

(1.) A narration of bare facts is a prerequisite for a proper appraisal; On 30-10-1979 Abdul Karim institutes a declaratory lawsuit under Sec. 229-B ZA and LR Act in the court of Assistant Collector, Azamgarh. A pedigree shows that ancestors Mir Bhullan and Islam had acquired the land. On death of Mir Bhullan his three sons : Yaqub, Ghulam Sarvar and Zakir Ali succeed to his interest. In the meanwhile Yaqub dies and his share goes to his two surviving brothers : Ghulam Sarvar and Zakir Ali. Their share equally 1/2 in the holding. Those others in pedigree Wali Mohd, Abdul Rashid and Mohd Razi have in time sold out their shares. Since Ali Ahmad and Abdul Rashid did not have any land, his father Mohd Shafi had co-opted them as tenants over some area. In this manner he and defendants became so-sirdars and thence co-bhumidhars in possession. His real brother Abdul Samad had migrated to Pakistan in the life time of his father. Things were so when Mohd Shafi dies in 1959. On his death, defendants Ali Ahmad and Abdul Rashid became in charge as he was a minor. But he was treated shabbily and had to migrate to Bombay to earn his livelihood. In the meanwhile consolidation operation set in. The name of his father was manoeuvered to be expunged from records. The defendants then executed a sale of land to Mangal Chandra and Bindeswari. This clandestine venture was intended to deprive him of his patrimony. He is now 32 years old. An inspection of documents reveals the proceeding gone through in consolidation had a stamp of imposition and fraud. He says he continues to be a co-bhumidhar with defendants Ali Ahmad and Abdul Rashid. The defendants 1 to 3 are disturbing his peaceful possession, they are repudiating his interest in land. The relief of a declaration as co-bhumidhar tenant in possession he prays the court for.

(2.) On 6-4-1983 defenant's Mangal Chandra and Bindeshwari in outright denial of plaintiffs say that on 24-3-1971 Ali Ahmad has transferred his 1/2 Bhumidhari rights to Mangal Chandra and Sheo Prasad. Similarly on 28-4-1971 Abdul Rashid transfers his 1/2 share to Bindeshwari an consequence of sale possession had been delivered ; their names have been mutated. The claim is firmly repudiated that Abdul Karim was ever in possession or had any right, title or interest. Furthermore, notification under Sec. 52, CH Act has been issued 18 years ago following consolidation of holdings. A further case is that Abdul Karim is not son of Shafi and is not resident of the village. The suit is barred under Sec. 49, CH Act; also is bad for non-joinder of necessary parties. The plea of non-service of notice under Sec. 80, C.P.C. is raised. The relief to dismiss the suit they pray the court for.

(3.) On 25-3-1980 Collector in a written statement is repudiating the claim of co-tenurial rights ; the plea is that suit is barred under Sec. 49, CH Act and 34, Land Revenue Act. Parties are given chance to lead their evidence : documental and oral. They have made their representation. On 20-11-1985 defendants motion that issue No. 2 : the bar of Sec. 49 CH Act be decided as first item of preliminary consideration. The court agrees. Parties are enabled to lead their evidence on this crucial point. On 16-7-1986 Assistant Collector First Class enters an opinion that suit is not barred under Sec. 49, CH Act. The appeal fails on 6-12-1989. Hence a revision by Mangal Chandras, 2 persons.