Basheer vs Shakoor

Ram Janam Singh, Member.

Basheer and Muneer Hasan have filed this second appeal against the judgment and decree dated 2011994 passed by the learned Additional Commissioner, Meerut.

Briefly, stated the facts of the case are that the plaintiff appellants filed a suit under Section 229B/176 of the U.P.Z.A, and L.R. Act before the learned trial Court with the allegation that the property in question is ancestral one and they alongwith defendants are cosharers and according to the share the property should be divided. Plaintiffappellants claimed their 1/3rd share in the land in dispute. The defendant respondents filed written statement and denied the claim of the plaintiffappellants. The learned trial Court decreed the suit of the plaintiffappellants against which an appeal was preferred before the Commissioner, Meerut. The learned Additional Commissioner after considering the evidence on record arrived at a conclusion that the decision of the learned trial Court is against the fact and law and the same was set aside by the learned Additional Commissioner by allowing the appeal.

I have heared the learned Counsel for the parties and gone through the record carefully.

It is undisputed that the property in question was recorded in the name of Jumma. After his death his one son Shakoor was mutated in the revenue records. His second son Sandal who died earlier could not be mutated nor his legal heirs were mutated in place of Sandal. It is evident from the record that Sandal and Shakoor both were born before the date of vesting i.e. 1963. The conclusion of the learned Additional Commissioner was that the plaintiffappellants did not take any action regarding their share in the land in dispute just after the death of Jumma. Right from 1363 to 1393F not action was initiated by the plaintiffappellants. The learned Additional Commissioner did not realise the intricacies of the Act and the provisions of law that even if the plaintiffappellants did not take any action for their share in the land in dispute it will not deprive them of their share in the property in dispute because the property in question is ancestral one and Jumma''s both sons Sandal and Shakoor where born before the date of vesting. The relevant extract of Khasra of 12 years will not give any right to a co tenure holder on the basis of adverse possession. Possession of one cosharer is possession of all the cosharers. The conclusion arrived at by the learned Additional Commissioner is contrary to the fact and the legal provisions of the Act.

I, therefore, feel that the judgment and decree dated 20194 passed by the learned Additional Commissioner deserves interference. I, therefore, allow the appeal, set aside the judgment dated 201 94 passed by learned Additional Commissioner and confirmed the judgment and decree dated 6121993 passed by the trial Court.