C.L Verma, Member:— This second appeal has been filed against the judgment and decree dated 21.4.99 passed by learned Additional Commissioner, Varanasi in Appeal No. 26 of 88. By the impugned order the learned Additional Commissioner dismissed the appeal and maintained the order dated 8.6.86 passed by the learned trial court in suit No. 15/58/22 of 79 under section 176 of the U.P.Z.A.L and L.R Act.
2. Briefly the facts of the case are that Smt. Bakreendan instituted a suit for division of her share to the extent of ½. Dill Mohd. contested the suit on various grounds. He admitted the pedigree but stated that Mehdi had transferred some pieces of his land and that the plaintiff was not entitled for half share.
3. The trial court dismissed the suit on 20.6.80 On appeal the case was remanded for fresh decision by the learned Additional Commissioner. After remand the trial court decreed the suit declaring the share of the plaintiff to be half. Appeal filed against this order was dismissed by the learned Additional Commissioner. Hence the present second appeal.
4. 1 have heard the learned counsel for the parties and perused the record.
5. The plea taken by the defendant Dil Mohd was that about thirty years back there had been a family settlement between the parties and they had obtained possession over respective plots on the basis of the family settlement. According to the defendant husband of the plaintiff Smt. Bakreedan had transferred some plots from the plots which had taken in his share.
6. A perusal of the material on record makes it clear that there is force in the pleas set up by the defendant. There is evidence on record that plot Nos. 2749, 1953, and 1955 were sold by Mehdi. Hasan. There is also a receipt on the record that Rs. 550/- were paid to Mehdi Hasan. From the evidence on record it has been established that the share of the plaintiff did not remain half. The learned courts below have erred in decreeing the suit declaring the share of the plaintiff to be half. In these circumstances it could not be held that the plaintiff was entitled to have half share in the disputed land. Her suit has been wrongly decided by the courts below.
7. In view of the above, second appeal succeeds and is hereby allowed. The orders of the courts below are set aside and the suit of the plaintiff is dismissed.