RAM BRICH PANDEY Vs. GOPAL PANDEY

JUDGEMENT

(1.) THIS is a Letters Patent Appeal brought by Ram Brich Pandey, plaintiff, against a decree of a learned Judge of this Court dismissing the suit of the plaintiff which had been decreed by the lower appellate Court. The decree granted by the lower appellate Court was for giving possession to the plaintiff of one-half of certain occupancy plots which had originally formed the holding of Sheo Bhajan. It is found as a fact by the lower appellate Court that the defendant is in possession of this half of this occupancy holding.

(2.) THE claim of the plaintiff to possession of the half of the occupancy holding in possession of the defendant is based on the argument that plaintiff alone was entitled to succeed to the whole of the occupancy holding of Sheo Bhajan on his death, because plaintiff was a nearer collateral than defendant. But under Section 22, Act 2 of 1901, a collateral who did not share in cultivation with the deceased as occupancy tenant is not entitled to succeed, THE finding of fact of the lower appellate Court is that Sheo Bhajan was separate. Accordingly, the plaintiff did not share in his cultivation and therefore was not a person entitled to succeed to the occupancy holding of Sheo Bhajan under Section 22, Act 2 of 1901. THE plaintiff therefore has failed to establish any preferential right against the defendant as successor of Sheo Bhajan. Accordingly we consider that the learned Judge of this Court was right in dismissing the suit of the plaintiff. We dismiss this Letters Patent appeal with costs.