HASSAMUDDIN Vs. HUSAINUDDIN

JUDGEMENT

(1.) This second appeal is filed by Hassanuddin against the judgment and decree of first appellate court dated 13.9.1993 who dismisses first appeal against the judgment and decree of trial court dated 31.3.1989 a decree declaring Husainuddin Azad, a co-bhumidhar tenant yet giving less share as co-tenant in joint holding.

(2.) The facts as per exposition in the pleadings are : On 26.4.1985 Hussainuddin Azad institutes a lawsuit for a declaratory judgment in the court of Assistant Collector, First Class. Manjhanpur, Allahabad. It is given out that land described in schedules A. B, C and D is the acquisition of ancestor shahedat Ali alias Basharat All. On his death his sons : Khuda Bux, Khairuddin and Nisar Ali succeed to tenurial legacy in equal shares. The ⅓ share of Khuda Bux goes to his father Madar Bus and uncle Mohd. Ghasit. On their deaths he and Hassanuddin, defendant No. 1 have inherited the tenure. A pedigree elaborating the relationships from common ancestor in lineal descent spread over to tour generations in given in the plaint.

(3.) It is claimed his share is 1/6 in the joint holding the share of Hassanuddin, defendant No. 1 is also l/6th; the share of defendant no. 2 Munshi Raza is l/6th;The shares of defendants 3, 4, 5, 6, and 7 is respectively 1/30 each; the share of defendant Iftikar Ahmad, D/o is also ⅙th. Likewise the share of defendants No. 10, 11, 12, is 1/24. By male lineal descent the shares of defendants 12, 13, 14 and 15 is 1/96 each. Parties are in possession in accordance with their shares. It is averred the father of defendant Hasanuddin was elder to his father and, therefore, his name came by courtesy in revenue records. H.s father Madar Bux could not become aware of non-entry of h.s name : more he was out station to earn his livelihood. The omission came to his notice in the course of consolidation operation. On his raising an objection defendant Hassanuddin admitted his claim filing a compromise in respect of khasra Nos. 2106, 2100 and respecting khata No. 473 situate in village Tahirpur. Accordingly his name was entered in consolidation operation as tenant. As it respects Khasra Nos. 1 & 2 situate in village Karan h.s father and defendant Hassanuddins were joint tenants. On the deaths of our fathers both of us have succeeded to patrimony and are in possession. The relief of a declaration that he is co-bhumidhar tenant in possession of ⅙ share in joint holding is prayed for.