ZAHOOR HASAN Vs. ISMAIL

JUDGEMENT

(1.) This second appeal has been filed by the plaintiffs who had filed a suit for possession over plot No. 794 and for a permanent injunction against the defendants restraining them from interfering with the plaintiffs- possession. At the time of the filing of the suit the matter was pending before the Criminal Court under Section 145 Cr. P. C. and later on the possession was delivered to the defendants during the pendency of the suit. The suit was, therefore converted into a suit for possession. The trial Court decreed the plaintiffs' suit but on appeal the decree was modified partly and instead of awarding full possession to the plaintiffs' a joint possession was decreed in favour of the plaintiffs and the defendants. It is against this decision of the lower appellate Court that the plaintiffs have come up before this Court in second appeal. The learned counsel for the plaintiffs has mainly pressed before me that the lower appellate Court has not attached any importance to C. H. Form No. 23 filed by the plaintiffs in which they claimed to be recorded as the proprietors of the land in dispute. In this connection the learned counsel for the appe llant has referred to Section 19-A of the U. P. Consolidation of Holdings Act and Section 27 (2) of the same Act. His argument was that the entries in the records of rights have to be presumed to be correct unless the contrary is proved and, therefore, entries in C. H. form No. 23 should have been taken as correct unless the same were alleged and were proved to be incorrect or wrong. It is not possible for me to agree to this contention. The record of the rights has been mentioned under Section 27 (1) of the Act as those records which have been prepared after the final scheme of consolidation has been published. It is well known that C, H. Form No. 23 is prepared under Rule 46 framed under Section 19-A of the Act. At the stage of Section 10-A of the aforesaid Act only a preliminary consolidation scheme remains under consolidation and, therefore, any paper prepared by the authorities at this stage of the consolidation proceedings cannot be regarded as a record of rights. Any document which is prepared in compliance of the provisions of Section 27 (1) of the aforesaid Act only can be given the designation or status of the record of rights and then only the provisions of Section 27 (2) of the Act would apply about the correctness of the entries made therein. The situation in this case is quite difierent and, therefore, it is not possible for me to agree with the argument advanced by the learned counsel for the appellants. The lower appellate Court had carefully considered the entire evidence on record and has even mentioned as under: "although, both the parties has alleged some partition of their ancestral property but the oral evidence did not satisfy about the extent of Kura or share of each property to the suit. " From this, the learned counsel for the appellants has tried to argue that when once the Court below has come to the conclusion that both the parties have asserted that there had been a partition and evidence was clear on record on behalf of the plaintiffs that plots Nos. 794 and 795 had been partitioned in such a manner that plot No. 794 was allotted to the kura of the plaintiffs then the finding given by the lower appellate Court was basically incorrect. I do not think, this line of argument is correct. It is true that both the parties have asserted that there have been a partition but the evidence on record was not very clear as to the particulars of all the properties partitioned and about the allotment of the various properties to the rival contenders. Unless a clear and unequivocal evidence could come before the Court it was difficult to hold that plot No. 794 belonged exclusively to the plaintiffs. Under these circumstances the lower appellate Court was correct in granting decree for joint possession to the plaintiffs and the defendants and if they deem proper they may seek partition of the property or other properties, if the law so provided, at a later stage, so far as the findings of the lower appellate Court are concerned they are all findings of facts and they are not vitiated in any manner so as to attract any interference by this Court. In the circumstances stated above, I do not find any force in this appeal and the same is hereby dismissed. The parties are directed to bear their own costs. .