BHABOODI Vs. KANHAIYA

JUDGEMENT

(1.) THIS is a second appeal under Section 331 of the UPZA and LR Act (hereinafter referred to as the Act), preferred against the judgment and decree, dated 16-8-1989, passed by the learned Additional Commissioner, Jhansi Division, Jhansi in appeal No. 74/56 of 1986-87 Lalitpur, dismissing the same and confirming the judgment and decree dated 29-9-1986/2-12-1986, passed by the learned trial Court in a suit under Section 229-B/176 of the Act.

(2.) BRIEFLY stated, the facts, giving rise to the instant second appeal are that the plaintiff, Bhabudi instituted a suit under Section 229-B/176 of the Act for the declaration of his rights as co-tenant as well as the division of holding, against the defendants, Basore etc., inter-alia, pleading that he and the defendant No. 1, being the real brothers, are in possession of the land, in dispute, which was acquired out of their joint funds; that the defendant No. 1, after receiving Rs. 90/- gave 1/2 share to the plaintiff and promised to get his name entered, when he would insist for the same and therefore, he is the co-tenant of the land, in dispute; that on 28-11-1960, since the partition was done amongst them through a PANCHNAMA, the portion including a well came in his share, while the well Mausumuapurwala went in the share of the defendant No. 1 and since then they were cultivating the land in dispute, separately. The cause of action arose when the name of the plaintiff did not find place in the revenue records and therefore, he has every apprehension of extinction of his rights in future. On notice, defendants 1 and 2 contested the suit, denying the allegations. The learned trial Court, after completing the requisite trial, dismissed the suit of the plaintiff, vide its judgment and decree dated 29-9-1986 against which he went up in appeal before the learned Additional Commissioner, who has also dismissed the same vide his judgment and decree, dated 16-8-1989 and therefore, it is against these judgments and decrees that the instant second appeal has been preferred by him before the Board.

(3.) I have closely and carefully considered the arguments, advanced before me by the learned Counsel for the appellant and have also scanned the record on file. A bare perusal of the record on file clearly reveals that on the pleadings of the parties, the learned trial Court framed as many as 5 issues, including the issue in respect of the claim of the appellant and after considering the evidence on record, both oral and documentary, it came to the conclusion that it is proved to the hilt that the plaintiff and the defendant No. 1 lived separately that the land, in dispute, was not acquired out of their joint funds and therefore, not a property of the joint Hindu family; that the land in dispute has been solely acquired by the defendant No. 1 and therefore, no rights or title could be declared in favour of the plaintiff. The PANCHNAMA, which has solely been relied upon by the plaintiff, is also not proved, in view of the fact that his own witness P.W. 3 has himself admitted that the land, in dispute, was not acquired by the father of the plaintiffs. There is nothing on the record, which may go to prove that the land, in dispute, has been aquired by the fathers of the plaintiff and the defendant No. 1. The plaintiff in his examination-in-chief has himself admitted that he has purchased the land from Gajawali Bua and therefore, the theory of joint acquisition of the land in dispute, which has been made the sole basis of the claim of the plaintiff, itself falls to the ground. It has also been observed that the suit of the plaintiff is not barred by limitation. While rejecting the appeal, the learned Additional Commissioner has concurred with the findings, recorded by the learned trial Court and has observed that the so called PANCHNAMA cannot be relied upon, as there is no details about the land, in dispute, nor is it decipherable and therefore, he is of the opinion that the claim of co-tenancy has not been successfully made out by the plaintiff. The findings recorded by the learned Courts below which have been arrived at after due and proper appreciation of evidence, both oral and documentary, on record, are quite logical and analytical in correct perspective of law and therefore, the same cannot be upset at this second appellate stage. The contentions of the learned Counsel for the appellant, who has miserably failed to substantiate his claim, are rather untenable for the same reason. No substantial question of law is rather involved in this second appeal, as no positive evidence to prove the joint acquisition of the land, in dispute, is forthcoming. The learned Courts below, have dealt with the matter, in question, through and through and I entirely agree with the views expressed by them. The case law, cited by the learned Counsel for the appellant too is of no help to him for the simple reason that the facts of the instant case are quite different from those of the reported case and therefore, this second appeal having no force, very richly deserves dismissal, outright.