JUDGMENT Hon’ble Sanjay Misra, J.—This is a plaintiff’s appeal under section 100 of the Code of Civil Procedure against the judgment and decree dated 3.10.1983 passed in Civil Appeal No. 509 of 1982 arising out of Original Suit No. 48 of 1980 whereby both the Courts below have dismissed the suit of the plaintiff-appellant which was filed for cancellation of the sale-deeds dated 7.9.1977 and 24.10.1977 with respect to an area within minjumla plot No. 191 situate in village Baraila alias Lotawan, pargana Zamania, District- Ghazipur. 2. While admitting the appeal, the Court framed following substantial question of law : “Whether the Court below was right in its view that the appellant did not have any share in the property even after holding that the land was ancestral property?” 3. Sri G.N. Verma, learned senior counsel assisted by Sri S.K. Upadhyay have appeared for the plaintiff-appellant and Sri Ram Niwas Singh has put in appearance on behalf of respondent Nos. 3 and 4. 4. The trial Court framed relevant issues and found that the sale-deeds could not be cancelled for the reason of alleged non payment of sale consideration or for the alleged reason that they had been obtained due to fraud, un-due influence and by mis-representation. The trial Court held that there was no evidence filed by the plaintiff to prove that the sale-deeds were executed without sale consideration and on the other hand held that the defendants’ witnesses as also the vendor of the sale-deeds had admitted the payment of sale consideration. It also considered that at the time of execution of both the sale-deed the Sub Registrar had recorded that sale consideration had been paid. The trial Court found that there was no evidence at all lead by the plaintiff to prove that the sale-deeds were got executed by fraud, mis-representation or un-due influence. The trial Court found that the plaintiff had failed to prove his case and, therefore, dismissed the suit. 5. The trial Court also considered as to whether the purchaser was bona fide purchaser for value and whether the sale-deeds were hit by Sections 41 and 52 of the Transfer of Property Act and decided against the plaintiff. 6. The trial Court found that the plaintiff had failed to prove his case and, therefore, dismissed the suit. 5. The trial Court also considered as to whether the purchaser was bona fide purchaser for value and whether the sale-deeds were hit by Sections 41 and 52 of the Transfer of Property Act and decided against the plaintiff. 6. The plaintiff filed appeal and the appellate Court has also nom suited the plaintiff by affirming the findings recorded by the trial Court and upon going through the evidence, it has held that the plaintiff has not lead evidence in support of his case and as such when the vendor was duly recorded in the revenue records and even during consolidation proceedings the plaintiff did not challenge the entries nor title of the vendor, he could not succeed in the suit for cancellation of the sale-deed executed by the vendor. The first appellate Court has found that the plot in question belonged to Ram Nath, the predecessor of the vendor namely Banarsi Upadhya. It was inherited from Ram Nath inasmuch as Ram Nath was entered in the revenue records in old plot No. mimnjumla 332/1 and 332/2 which was given a new number as shown in Khasra 1333 Fasli as plot No. 191 and, therefore, it came in the hands of Banarsi as an ancestral property prior to the enforcement of the U.P.Zamindari Abolition and Land Reforms Act, 1951. The first appellate Court recorded that inheritance and succession under the Hindu Law would not apply to the plot in question since Banarsi was alone recorded and, therefore, it was an occupancy or hereditary tenancy prior to the abolition of zamindari. It held that succession to occupancy and hereditary tenancy was governed by the tenancy laws wherein a son did not have any right in hereditary or occupancy tenancy during the life time of his father. The son could inherit such tenancy only upon the death of his father. The first appellate Court, therefore, recorded that the plaintiff being son of Banarsi could not be a co-tenant of plot No. 191 during the life time of his father namely Banarsi Upadhya. 7. The first appellate Court also took into consideration the ground upon which the two sale-deeds have been challenged. It found that the pleading that the sale-deeds were obtained fraudulently had been given up and no evidence was lead on that point. 7. The first appellate Court also took into consideration the ground upon which the two sale-deeds have been challenged. It found that the pleading that the sale-deeds were obtained fraudulently had been given up and no evidence was lead on that point. It found that the pleading of un-due influence and mis-representation was also not proved by the plaintiff inasmuch as his witness never said that he was present at the time of execution of the sale-deeds and appeared to be a witness who had been set up. It recorded a finding that the plaintiff had earlier filed a suit for injunction against the vendor. However, the ex-parte decree obtained by the plaintiff on 28.1.1978 was set aside on 17.3.1979 which attained finality and, therefore, it was not hit by the provisions of section 52 of the Transfer of Property Act. 8. On the other hand D.W.1 Shashi Kant and D.W.2 Kapil Dev have deposed and accepted the execution of the sale-deeds and Banarsi himself has supported their case as a defendant in the suit. When the vendor himself has accepted the execution and registration of the sale-deeds and is also accepting that sale consideration was paid and there was no contradictory evidence of the plaintiff, it found that the sale-deeds were bone fide executed for sale consideration. Having so recorded categorical findings of fact, both the Courts below have non suited the plaintiff. 9. The North Western Provinces Tenancy Act, 1901 contemplated classes of tenants. An occupancy tenant was a person who held the same land continuously for a period of twelve years subject to the restrictions provided in Section 11 of the Act. The occupancy rights would extinguish on the tenant’s death if he left behind no heir. Succession of an occupancy tenant was detailed in Section 22 of the Act. The Act of 1901 did not deal with hereditary tenants. 10. Under the United Provinces Tenancy Act, 1939 hereditary tenants were included in the classes of tenants and the interest of an occupancy tenant and hereditary tenant were inheritable. Succession of an occupancy tenant was detailed in Section 22 of the Act. The Act of 1901 did not deal with hereditary tenants. 10. Under the United Provinces Tenancy Act, 1939 hereditary tenants were included in the classes of tenants and the interest of an occupancy tenant and hereditary tenant were inheritable. The proviso to Section 33 of the Act of 1939 provided as quoted hereunder : “Provided that no person shall be deemed to be a co-tenant notwithstanding that he may have shared in the cultivation of the holding, unless he was a co-tenant from the commencement of the tenancy, or has become such by succession or has been specifically recognised as such in writing by the land-holder.” 11. If a person was not recorded as a co-tenant from the commencement of the tenancy he cannot be deemed to be a co-tenant even if he had shared in the cultivation. He could be a co-tenant if by succession he acquired a co-tenant’s rights. 12. In the case of Ram Awalamb and others v. Jata Shankar and others, 1968 ALJ 1108, a Full Bench of this Court was considering a question as to what is the status of a co-bhumidhar and whether or not a bhumidhari property is subject to any personal law so that the entire joint family could be deemed to be one single bhumidhar and no transfer could be made unless it was for legal necessity or for the benefit of the estate. The question was answered as reproduced hereunder : “Our conclusions can, therefore, be briefly summarised as follows : 1. Where members of a joint Hindu family hold bhumidhari rights in any holding, they hold the same as tenants in common and not as joint tenants. The notions of Hindu law cannot invoked to determine that status. 2. Where in certain class of tenancies, such as permanent tenure holders, the interest of a tenant was both heritable and transferable in a limited sence and such a tenancy could, prior to the enforcement of the Act, be described as joint family property or co-parcenary property, the position changed after Act 1 of 1951 came into force. Thereafter the interest of each bhumidhar being heritable only according to the order of succession provided in the Act and transferable without any restriction other than mentioned in the Act itself, must be deemed to be a separate unit. 3. Thereafter the interest of each bhumidhar being heritable only according to the order of succession provided in the Act and transferable without any restriction other than mentioned in the Act itself, must be deemed to be a separate unit. 3. Each member of a joint Hindu family must be considered to be a separate unit for the exercise of the right of transfer and also for the purposes of devolution of bhumidhari interest of the deceased member. 4. The right of transfer of each member of the joint Hindu family of his interest in bhumidhari land is controlled only by Section 152 of the Act and by no other restriction. The provisions of Hindu law relating to restriction on transfer of co-parcenary land, e.g. existence of legal necessity, do not apply.” 13. The facts of the case indicate that the parties belong to the same family. Ram Nath was the original ancestor and Banarsi and Bindhyachal were his two sons. Plaintiff Kailash Nath is the son of Banarsi whereas Shashi Kant in whose favour the sale-deeds were executed is the grand son of Bindhyachal. The Courts below have categorically recorded concurrent findings of fact that the plot in question was occupancy and hereditary tenancy. Hence when prior to abolition of zamindari Banarsi inherited the same from his father Ram Nath he was recorded in the revenue records and in subsequent consolidation proceedings his name alone was duly entered. His son namely the plaintiff could not claim co-tenancy alongwith his father in occupancy and hereditary tenancy. The sons did not contest the title proceedings before the consolidation authorities which were held after zamindari had been abolished. That being the factual situation the submission made on behalf of the plaintiff-appellant that the property was of the joint Hindu family and Banarsi was karta of the family, appears to be quite mis-placed. 14. In the absence of any evidence filed by the plaintiff the Courts below have concurrently recorded a finding on the status of Banarsi over the plot in dispute. 14. In the absence of any evidence filed by the plaintiff the Courts below have concurrently recorded a finding on the status of Banarsi over the plot in dispute. Since there is no evidence to the contrary the legal argument advanced on behalf of the plaintiff-appellant regarding the plot in question belonging to the joint Hindu family even in 1333 Fasli cannot be accepted and, therefore, the decision in the case of Ram Awalamb and others v. Jata Shankar and others, 1968 ALJ 1108, cannot be of any help to the appellant. 15. The relevant consideration before the Courts below was with regard to the entry in the revenue records and since Banarsi was recorded alone they have clearly found that he had inherited the occupancy and hereditary tenancy from his father Ram Nath. If that be the situation it cannot be held that the succession as provided under the Hindu Law for the joint Hindu family property would apply in the facts and circumstances of the present case. Moreover both the Courts below have recorded concurrent findings of fact on the basis of evidence available before them and this Court in second appeal cannot re-appreciate the evidence and substitute its own findings in place of the concurrent findings of fact recorded by both the Courts below. It is not a case where the Courts below have ignored any evidence or that the findings of fact are perverse in any manner. As such no interference is required in the impugned judgment whereby the suit of the plaintiff-appellant has been dismissed by both the Courts below. 16. In view of the aforesaid facts and circumstances, the substantial question of law framed in this appeal is answered by holding that the appellant was not the co-tenant/co-sharer in the plot in dispute alongwith his father since it was an occupancy and hereditary tenancy inherited by his father Banarsi on the death of Banarsi’s father Ram Nath and, therefore, the plaintiff could not claim any right as co-tenant with Banarsi during the life time of Banarsi because he was not a co-tenant nor recorded in the revenue record during the life time of his father and he could not assail the sale-deeds on the ground that his father could not sell the land alone or even that his father has sold share of a co-sharer. Hence even though the land was ancestral in the hands of Banarsi the plaintiff had no share in it till Banarsi was alive. 17. The Courts below have held that the plaintiff has not been able to prove that the sale-deeds were obtained by fraud, mis-representation or un-due influence. Hence also the plaintiff’s suit has been rightly dismissed. 18. For the aforesaid reasons, this second appeal is dismissed. No order is passed as to costs. —————