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Aman Ali Khan and anr. Vs. Musammat Nazimannissa and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in3Ind.Cas.19
AppellantAman Ali Khan and anr.
RespondentMusammat Nazimannissa and anr.
Excerpt:
house built by non-proprictor - house falling into ruins--zamindar giving the site to others--suit by first non-proprietor after 12 years--custom--burden of proof. - - i am of opinion that the plaintiff, who has no title in the land, was bound to establish that inspite of the land becoming a piece of waste land she under the terms of the wajib-ul-arz or according to the village custom was entitled to retain possession of that waste land* and as she has failed to do so her claim should have been dismissed......aman ali khan and umer khan, have preferred a second appeal to this court and it is argued by their learned vakil that it was for the plaintiff to prove that notwithstanding the finding that the house had fallen down more than twelve years before, the institution of the suit she was ' entitled to retain possession of the site. it is also contended that according to the village custom the site lapsed to the zemindar. i am of opinion that the plaintiff, who has no title in the land, was bound to establish that inspite of the land becoming a piece of waste land she under the terms of the wajib-ul-arz or according to the village custom was entitled to retain possession of that waste land* and as she has failed to do so her claim should have been dismissed. i, therefore, allow this.....
Judgment:
Karamat Husain, J.

1. The plaintiff Musamimat Nazimunnisa instituted a suit against the defendants. The main relief she sought was that her. right may be established, the defendants Nos. 1 and 2 may be dispossessed,. the new constructions made by them may be demolished and she (the plaintiff) may be awarded possession of the house situate in enclosure No. 78, couprising 2 biswas and 2 biswansis of land in mouza Shahnagar. The defence was that the house had fallen into ruins more than twelve years before the, institution of the suit 'that, the site had lapsed to the zamindar who gave it to the defendants and that they built the house on the site granted to them by the zamindar. The Court of first instance dismissed the claim. The plaintiff appealed 'to the lower appellate Court and one of the pleas taken in the memorandum of appeal to that Court was that the plaintiff and her ancestress are the owners of the house and are in possession of the site of the house which has fallen down'. The lower appellate Court coming to the conclusion that the site was never abandoned by the plaintiff and that, therefore, it never lapsed to the zamindar allowed the appeal and decreed the plaintiff's claim. Defendants, Aman Ali Khan and Umer Khan, have preferred a second appeal to this Court and it is argued by their learned vakil that it was for the plaintiff to prove that notwithstanding the finding that the house had fallen down more than twelve years before, the institution of the suit she was ' entitled to retain possession of the site. It is also contended that according to the village custom the site lapsed to the zemindar. I am of opinion that the plaintiff, who has no title in the land, was bound to establish that inspite of the land becoming a piece of waste land she under the terms of the wajib-ul-arz or according to the village custom was entitled to retain possession of that waste land* and as she has failed to do so her claim should have been dismissed. I, therefore, allow this appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance.


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