Munir Bux vs Nathoo

S.R. Yadav, Member.

This second appeal is directed against the judgment and decree dated 3899 passed by the Additional Commissioner, Bareilly Division, arising out of suit under Section 229B of U.P.Z.A. & L.R. Act, heard and decided by the trial Court on 3111998.

Briefly the facts of the case are that a suit under Section 229B of Z.A. & L.R. Act was instituted on pleadings that the plot Nos. detailed down at the foot of the plaint having an area of 2.356 hectare, situate in village Kura, pergana Puwayan, District Shahjahanpur is the ancestral property of plaintiffs and defendants and both are in possession. A pedigree of the family has also been given in the plaint. It is alleged that during the consolidation for want of one or other reasons the disputed plots were entered in a sole tenancy of the defendants and as the plaintiffs denied their right and hence they Instituted a suit wherein after hearing both the parties, the trial Court framed four issues for decision on the point at dispute. After taking evidences the trial Court recorded its finding on each and every issue and after evaluating the evidence advanced by the parties the trial Court came to the conclusion that the disputed land being the ancestral one and the parties being on the same lineage have cotenancy right over the same and finally decreed the suit, vide the order dated 31198. On being aggrieved by the said order of the trial Court, first appeal was preferred before Commissioner, Bareilly Division Bench has been heard and decided, vide the Additional Commissioner''s order dated 3899 whereby the trial Court''s order has been reversed. Against this order, the instant second appeal has been preferred before this Court and the same is being heard by this Court. Despite proper notices upon the respondents non appeared to put up their case in the Board so ex parte, hearing was ordered and the second appeal is being heard ex parte.

I have heard the learned Counsel for the appellant and perused the relevant papers on file. The learned Counsel for the appellant framed substantial question of law involved in the matter which is on record. The learned Counsel for the appellant mainly submitted that the property in dispute was ancestral one the pedigree advanced by the parties are undisputed and that the plaintiffappellant had cotenancy right over the land in dispute. After hearing the learned Counsel for the parties and perusing the relevant papers on file it is crystal clear that while dealing with the matter the trial Court has framed necessary issues and has recorded relevant evidences and has given a clearcut finding of fact that the parties were of the same ancestral family. Hence, their claim of cotenancy was accepted by the trial Court while hearing the first appeal the Additional Commissioner though have given a long judgment but reading of the same shows that the entire exercise is futile one because therein only irrelevant discussion has been made and the irrelevant points have been touched. There is no finding with regard to parties being on the same lineage. In the circumstances the finding of fact recorded by the trial Court should not have been reversed without giving categorical finding to reverse them. The facts should not be reversed on conjectures and surmises. I find force in the submission made by the learned Counsel for the appellant, and hence, the second appeal deserves to be allowed.

In view of the discussion made hereinabove, the second appeal having force is hereby allowed and the impugned order dated 3899 passed by the Additional Commissioner is set aside and that of the trial Court dated 31898 is hereby upheld and maintained.