RAM OUDH Vs. DEOKALI

JUDGEMENT

(1.) This appeal is brought by the Defendant from the decree of the lower appellate court dated March 1, 1946 upholding the decree of the trial court in a suit for possession and damages. The Plaintiff Respondent brought the suit upon the allegation that he was the hereditary tenant of the land in suit under a patta of the year 1352 F and that the Defendant Appellant had wrongfully dispossessed him in July, 1944. He claimed possession as well as damages. The defence was a denial of the Plaintiff's case. It was pleaded that the patta was invalid as the Defendant was in possession of the land on the date on which it was granted to the Plaintiff and that the land lord having accepted nazrana from the Defendant has allowed him to retain possession. Counsel for the Defendant on the date of the pleadings stated as follows:

(2.) Upon the pleadings the only material issue framed by the court was whether the Plaintiff was a tenant of the land in suit as alleged. The other issue related to the relief. It is noted in the proceedings that the Defendant's counsel did not press any other pleas nor did he claim any other issues. The issue about the tenancy was referred to the Revenue court. That court answered the issue in favour of the Plaintiff. This finding was accepted by the Civil court which decreed the suit for possession and damages to the extent of Rs. 52/-. This finding was accepted by the lower appellate court in appeal and the decree of the trial court was upheld. The lower appellate court also observed that according to the Defendant's own admission the estate had come into possession of the land in suit after rejecting the Defendant and that the patta granted by the estate after the Defendant's ejectment to the Plaintiff was perfectly valid.

(3.) The finding about the tenancy is one of fact which cannot be assailed in second appeal. It is, however, contended that the finding is erroneous in law in that the patta was granted to the Plaintiff at a time when the estate was not possession but the Defendant was in possession of the land. Reference is made the statement of the Plaintiff's Mukhtaras P. W. 1. The Mukhtar merely said that he was not in a position to say whether the estate was in possession of the land when the patta was granted but the Defendant in addition to the statement of the counsel on the date of the pleadings which has been referred to above stated on oath that he was ejected from the land in suit Under Section 180 of the U.P. Tenancy Act, that he instituted a suit Under Section 183 against the landlord's estate but his suit was dismissed by two courts. It is obvious from these admissions that the grant of the patta by the estate to the Plaintiff was made at a time when the estate was in possession of the land and the Defendant had been ejected there from. Under the circumstances the validity of the patta is not open to any doubt.