KISHUN Vs. RAMA NAND

JUDGEMENT

(1.) THESE two second appeals have been preferred against the judgment and decree dated 2-6-98" passed by the learned Additional Commissioner, Azamgarh Division, Azamgarh, arising out of a suit under Sec­tion 229-B of U.P.Z.A. & L.R. Act, heard and decided, vide the order dated 2-4-96 passed by the learned trial Court. Since both the appeals are here against the same order i.e. 2-6-98 as such they are con­solidated and decided by a common order ; the file of appeal No. 16 of 97-98/Ballia shall be the leading one.

(2.) HEARD the learned Counsel for the parties at length and have perused the relevant papers on file.

(3.) AFTER hearing the learned Counsel for the parties and perusing the records, the whole matter relates to plot No. 231/2.09 and 233/0.07 situate in villate Jogadeeh, pergana Kopachit Garvi, tahsil Rasra, district Ballia, in respect of which a suit under Section 229-B of U.P.Z.A. and L.R. Act was instituted by the plaintiff-ap­pellant for declaration of co-tenancy rights over the same, that the defendant-respon­dent alleged therein that the plaintiff-ap­pellant was the brother of the defendant-respondent. The plaintiff-appellant also claimed himself as the son of Sahdeo and stated that the defendant-respondent was the Karta of the family and in that capacity he got his name entered into the land in dispute denying the rights of the plaintiff-appellant. The plaintiff-appellant states himself to be out of the village; the claims of his right over the disputed land is 1/3. On issuance of notices the suit was contested by way of written statement and claims of the plaintiff-appellant was denied by stat­ing that the plaintiff-appellant was not the son of Sahdeo and also not the brother of the defendant-respondent; but he stated to be the son of Jhingur and it was also stated as the son of Sahdeo sister's. On the pleadings of the parties as many as five issues were framed for determination of the dispute amongst contestants and the parties were allowed to adduce evidence in support of their claims ; after evaluating the same the trial Court decreed the suit, vide the order dated 2-4-96. Aggrieved by the above order, first appeal was preferred before the learned Commissioner, Azamgarh Division, which has been heard and decided vide the learned Additional Commissioner's order dated 2-6-98. Now the same is challenged before the Board and the same is being heard by this Court. The main question in this matter is to be decided whetheer the plaintiff-appel­lant is the son of Sahdeo or he is the son of Jhingur. In this connection it is notewor­thy to state that evidence led by the parties are documentary as well as oral; the plain­tiff-appellant has filed the family register of 1988 while the defendant-resondent filed the same of 1996. Both family registers defer in respect of their entries, it is said that the family register prepared in 1988 being defective was challenged and the same stood revise in 1996. The family register of 1988 shows that Srikishun was the son of Sahdeo while the family register of 1996 shows that Srikishun was the son of Jhingur. In this connection the state­ment of the Pradhan has also been taken who states that Srikishun was the son of Sahdeo but the testimoney of village Prad­han has not believed by the lower appel­late Court and he has believed the tes­timoney of family register of 1996. The plaintiff-appellant has not filed any documentary evidence in support of his contentions. It appears that Srikishun was living with Sahdeo because he has stated as the son of Sister to Sahdeo. It is cus­tomary and traditional that the children of the sisters usualy reside with their brothers and the same happend with Srikishun also ; by mere residing with the brother of his mother he should not claim any right and title over the land of his mother's brother. In this connection the lower appellate Court has rightly and properly made appraisal of the evidence on the record ; their fresh appraisal is not called for because the same is detailed and easoned one; in this respect I would like to reproduce the observations made by the Hon'ble Supreme Court in AIR 86 SC1509: