Kishun vs Rama Nand

S.R. Yadav, Member.

These two second appeals have been preferred against the judgment and decree dated 2698" passed by the learned Additional Commissioner, Azamgarh Division, Azamgarh, arising out of a suit under Section 229B of U.P.Z.A. & L.R. Act, heard and decided, vide the order dated 2496 passed by the learned trial Court. Since both the appeals are here against the same order i.e. 2698 as such they are consolidated and decided by a common order ; the file of appeal No. 16 of 9798/Ballia shall be the leading one.

Heard the learned Counsel for the parties at length and have perused the relevant papers on file.

The learned Counsel for the appellant narrated the history of the case and submitted that the appellant was the brother of the defendant and had right and title over the disputed land, that the statement of the Pradhan was material but the same had been wrongly disbelieved by (he learned lower appellate Court and that, the learned trial Court has passed just and proper order which is liable to be maintained. In support of his contentions he cited the caselaw reported in 1997 RD 467 and 1971 AWR 20.

In reply, the learned Counsel for the respondents also narrated the history of the case and submitted that Srikishun was not the brother of respondent, that the respondent was the sole tenant of the disputed land, that the respondent was the son of Sahdeo while the appellant was the son of Jhingur, that the documentary evidence was in favour of the respondent, that in comparision of the documentary evidence the oral evidence had little value, that the lower apellate Court properly analysed and assessed the evidence on file and reappriasal of the same was uncalled for. In support of his contentions he referred caselaw reported in 1969RD295 andAlR1986SC1509.

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 229B of U.P.Z.A. & L.R. Act was instituted by the plaintiffappellant for declaration of cotenancy rights over the same, that the defendantrespondent alleged therein that the plaintiffappellant was the brother of the defendantrespondent. The plaintiffappellant also claimed himself as the son of Sahdeo and stated that the defendantrespondent 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 plaintiffappellant. The plaintiffappellant 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 plaintiffappellant was denied by stating that the plaintiffappellant was not the son of Sahdeo and also not the brother of the defendantrespondent; 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 2496. 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 2698. 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 plaintiffappellant 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 plaintiffappellant has filed the family register of 1988 while the defendantresondent 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 plaintiffappellant 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:

"The High Court in exercise to its power under Section 100 of the Civil Procedure Code cannot make a fresh appraisal of the evidence and come to a different finding contrary to the finding recorded by the first appellate Court. The finding on theqiiestion of limitation recorded by the First Appellate Court on appraisal of evidence after taking into consideration the entire circumstances in the case is finding of fact which cannot be set aside by the High Court in the exercise of power under Section l00 of CPC."

So far as the substantial question of law is concerned in the instant second appeal no such substantial question of law has been raised.

In view of the above, 1 find ample force in the submission advanded by the learned Counsel for the respondent while there is no force in the contentions advanced by the learned Counsel for the appellant. The citation referred to by the learned Counsel for the appellant is not applicable to the facts and circumstances of the instant case while the citations referred to by the learned Counsel for the resondent is fully applicable to the facts and circumstances of the instant case. Thus, 1 do not find force in the instant second appeal as such the same is liable to be dismissed.

In the result, the instant second appeal fails and is hereby dismissed and the order dated 2698 passed by the lower appellate Court is hereby confirmed. This order shall govern the S.A. No. 17 of 9798/Ballia also.