TOTA RAM Vs. KHTILLU AND OTHERS

JUDGEMENT

(1.) THIS is Plaintiff's Second Appeal whose suit for partition has been dismissed by both the courts below.

(2.) THE Plaintiff Tota Ram claimed that he was the joint owner -in -possession of Gatwar bearing Ahata No. 35, Ghar No. 42, as entered in Khasra Pamaish abadi of the year 1863 (Ex. P 3). According to the Plaintiff, his share in the said site is 1/2 and that of the Defendants is 1/6 each; hence the suit for partition. The suit was contested on the ground that the boundaries of Ahata No. 35 were incorrect It was denied that the Plaintiff and the Defendants were joint owners -in -possession, as alleged. The trial court found that the Plaintiff had failed to prove that the suit land described in the site plan Ex. P1 was a part of Ahata No. 35, Ghar No. 42, as shown in Ex. P3. On that finding, the suit was dismissed. In appeal, the learned Senior Sub Judge with Enhanced Appellate Powers affirmed the said finding of the trial court, and, thus, maintained the decree dismissing the suit. Dissatisfied with the same, the Plaintiff has filed this Second Appeal.

(3.) AFTER hearing the learned Counsel for the Appellant I do not find any merit in this appeal. On an appreciation of the entire evidence, a firm finding has been given by both the courts below that the Plaintiff had failed to connect the suit land with the land described as Ahata No. 35, Ghar No. 42 (Ex. P3). Surprisingly enough, no application was moved by the Plaintiff before the trial court for appointment of the Local Commissioner. The application, if any, filed before the lower appellate court in this behalf was of no consequence, Thus, I do not find any illegality or infirmity with the concurrent findings of the courts below so as to be interfered with in Second Appeal. Consequently, the appeal fails and is dismissed with no order as to costs.