MOHD. YAQUB KHAN Vs. JALIL KHAN

JUDGEMENT

(1.) This second appeal under section 100 of the Code of Civil Procedure has been preferred by the appellants plaintiffs against the Judgment and Decree dated 19.5.1979 passed by Civil Judge, Sultanpur, whereby setting aside the Judgment and Decree dated 09.01.1978 passed by II Additional Munsif, Sultanpur, learned Civil Judge partly allowed the appeal and remanded back the matter to the learned Munsif.

(2.) The factual matrix of the case is that plaintiff appellants filed the suit for declaration that they have got 1/32 share in the grove in dispute described in list 'A' given at the foot of the plaint and have got half share in the property given in list 'B'. In the plaint, the plaintiffs had given long pedigree and had pleaded that property given in list 'A' is ancestral grove of parties and parties are joint bhumidhar in possession of the same and plaintiffs have 1/32 share therein. It was further pleaded that one Bisesar Tiwari was the owner of the property mentioned in list 'B'. He had transferred the property to Rambahadur, Umrao Khan and Abdul Aziz. Kallu Khan, Lallu Khan and Sardar filed a suit being No.305 of 1922 before the Munsif against Bisesar Tiwari, which was decreed on 19.1192 According to that decree, Kallu Khan, plaintiff of the said case, deposited money for preemption, which was taken by Rambahadur and others. Decree holders were given possession of the same. Lallu Khan and Sardar died issueless and their mother namely Maan Bibi also died. In these circumstances, Kallu Khan alone remained owner of the same. After death of Kallu Khan, plaintiffs and defendants nos. 22 and 23 are bhumidhars in possession of the same. In this way, the plaintiffs have half share therein and defendants 1 to 21 have no concern with the same nor they ever remained in possession of the same. The grove mentioned in the list 'A' and 'B' were recorded in one Khata and due to that the other defendants also started to assert their title in the grove in suit, hence the suit.

(3.) While contesting the suit, defendant nos.12, 18 and 19 admitted the claims of the plaintiffs. Defendant nos.1, 2, 3, 8 and 9 filed written statement with the allegation that the plaintiffs have not got 1/32 share in the property of the list 'A' and have no concern with the property of list 'B' nor they ever remained in possession of the said property. In their written statement, it has been alleged that Bisesar was owner of the property mentioned in list 'B' and had executed sale-deed for Rs. 1000/- in favour of Rambahadur, Umrao and Abdul Aziz on 18.7.1921 and they and their descendants became owner of the same. Therefore, the plaintiffs and defendant nos.22 and 23 have got no concern with the property of list 'B'. It is further pleaded that the title regarding bhumidhari land is involved in this case, hence suit is barred by Section 229 B U.P.Z.A. Act. It is further alleged that consolidation has taken place, hence the suit is barred by Section 49 of the U.P.C.H. Act and is not maintainable and is liable to be dismissed. Defendant nos.10,13 to 17 and 20 also filed written statement with the said allegations. Defendant nos.4, 6, 7 and 11 also filed written statement with the same allegation as made by defendant nos.1 to 3, 8 and 9 and defendant no.21 filed the written statement with the same allegations.