Ranjeet v. Nand Ram — 1992 DIGILAW 1449 (ALL)

JUDGMENT Brijesh Kumar, I.A.S. Member - This is plaintiff's second appeal against the judgment and decree dated 3-4-1984 passed by Sri O.P. Dubey, Additional Commissioner Meerut Divisions, Meerut in appeal No. 76 of 1982-83, arising out of judgment and decree dated 18-8-1983 passed by the Additional Sub-Divisional Officer Ghaziabad in suit No. 58 under Section 229-B/209 of the U.P. Zamindari Abolition & Land Reforms Act. 2. The facts of the case are that the plaintiff Chhutton son a Askaran subsequently substituted by his sons Ranjit and Sharam Singh, filed a suit under Section 229-B/209 of the Act against Nand Ram with the prayer to declare him sole bhumidhar of plot No. 1490/1-6-0 and sirdar of plot Nos. 31/0 19-0, 32-0-6-0, 185/0-5-0, 187/0-15-0, 191/0-9-0, 664/0-18-0 situate in village Raispur pergana Dasna district Meerut, It was alternative pleaded that in case the defendant was found in possession of the land, he should be ejected. His case is that, he is the recorded tenant and that the defendant was wrongly recorded against the plots in dispute. 3. The defendant Nand Ram contested the suit denying the allegations and setting forth his case that he was co-tenant along with the plaintiff. His case is that the land in dispute, besides other land, the joint tenancy of the plaintiff, defendant and one Kunwar Sen. The land was ancestral and was in joint possession and cultivation. Most portion of the land was recorded in the name of Kunwar Sen in representative capacity. Though the plaintiff and the answering defendant were in joint possession of the land, apart from the land of Kunwar Sen continued to be recorded. He subsequently gave his consent for the expunction of his name from khata No. 32 and 167. It was further pleaded that the defendant was minor and under the guardianship of his real uncle i.e., the plaintiff and the possession an cultivation was joint. The plaintiff taking the advantage of the defendant's minority got his name recorded to the exclusion of the defendant. He claims half share in the khata No. 32 and 167. The suit was decreed by the learned trial court on 22-2-1969. This decree was annulled in an appeal on 27-11-1971 by the Additional Commissioner and the case was remanded back to the trial court for decisions afresh. After remand, the suit was ultimately dismissed on 18-8-1983 by the ASDO Ghaziabad. The suit was decreed by the learned trial court on 22-2-1969. This decree was annulled in an appeal on 27-11-1971 by the Additional Commissioner and the case was remanded back to the trial court for decisions afresh. After remand, the suit was ultimately dismissed on 18-8-1983 by the ASDO Ghaziabad. An appeal preferred against this decree was also dismissed by the learned Additional Commissioner. 4. I have heard the learned counsel for the parties. Sri B.B. Paul learned counsel for the appellant has contended that no co-tenancy right accrues to the defendant on the basis of Marfat entries, Sri B.D. Tripathi, learned counsel for the respondent his contended that the plaintiff has failed to prove his case of the sole bhumidhari. 5. I have carefully considered the arguments advanced before are and have also perused the record. It appears from the record that the plaintiff has filed extract khasra of 1356, 1359, 1361, 1362, 1363 and 1669-F. The defendants has filed extract of khewat 1336 and 1337-F, irrigation receipts from 1352-75-F. The question to be determined in this case is whether the plaintiff is the sole bhumidhar and sole sirdar of the plots in dispute and whether the defendant is co-tenant entitled to half share in the plots in dispute. The plaintiff is recorded in the khasra 1356, 1359 and 1361-F. In the remarks column, the defendant Nand Ram is recorded as MARFAT. The question is how has the plaintiff acquired this land. No khatauni has been brought on the record. A heavy duty lies on the plaintiff of prove as to how has he acquired the land to become the sole tenant. Only a record of right i.e., khatauni can throw light on this point. But this important document has not been brought on the record, Sole tenancy rights, therefore, does not accrue to the plaintiff on the basis of the basis of the khasra entries. The documents brought on the record by the defendant on the other hand, show that the tenancy was joint. In the keewat of 1336-F. Baboli Ram, Kunwar Sen are recorded with share. Chhajju and Behari and recorded with share and Nand Ram (minor) under the guardianship of his uncle Chhuttan in the main column. But in the year 1337-F, Chhuttan go his name recorded without any reference a Nand Ram. In the keewat of 1336-F. Baboli Ram, Kunwar Sen are recorded with share. Chhajju and Behari and recorded with share and Nand Ram (minor) under the guardianship of his uncle Chhuttan in the main column. But in the year 1337-F, Chhuttan go his name recorded without any reference a Nand Ram. The learned trial court further finds that despite this entry Nand Ram continued to be in possession. The irrigation receipts pertaining to a long period prove his possession. 6. The learned trial court has rightly inferred that the plaintiff was not the sole tenant. The plaintiff has not come forward with a clear hand. He concealed the facts of his being recorded as guardian of his own nephew in the khewat and khatauni 1336 and 1337-F 1337-F. It is categorically written in the document that Nand Ram and Chhuttna are entitled to half share each. In view of this documentary evidence, the plaintiff's case of sole tenancy falls to the ground. There is no doubt about it that the holding was ancestral. There is no proof of its identity been broken. This having been established that the possession of one co-tenant is the possession of all, the mere fact that the name of the defendant does not find place in the khatauni 1337-F will not come in the way of his being a con-tenant along with the plaintiff. There is not proof that the co-tenancy was extinguished. The right of a co-tenant can be extinguished either by transfer, surrender or adverse possession. The plaintiff has not taken any of these pleas. In the absence of evidence on any of these three, the mere fact that the name of the defendant was not entered along with the plaintiff will not dis-entitle him of the rights of co-tenancy along with the plaintiff, satisfied that the defendant is entitled to co-tenancy along with the plaintiff will to the extent of half share. I however, note with surprise that the learned trial court declared the defendant as sole bhumidhar and sirdar of the land in dispute. This is quite contrary to the plea taken by the defendant himself who has claimed only half share. The mistake is patent and needs to corrected. The defendant is declared co-tenant along with the plaintiff with half share in the land in dispute. 7. This is quite contrary to the plea taken by the defendant himself who has claimed only half share. The mistake is patent and needs to corrected. The defendant is declared co-tenant along with the plaintiff with half share in the land in dispute. 7. In view of the above discussions, this appeal is dismissed with the observation that the defendant respondent is co-bhumidhar along with the plaintiff to the extent of half share. The parties shall bear their own costs.