LAWS(ALL)-1970-4-42

RAJA SHEO PAT SINGH DIED AND AFTER HIM KUNWAR VIRENDRA PRATAP SINGH AND ORS. Vs. SYED SARAFAT HUSSAIN AND ORS.

Decided On April 29, 1970
Raja Sheo Pat Singh Died And After Him Kunwar Virendra Pratap Singh And Ors. Appellant
V/S
Syed Sarafat Hussain And Ors. Respondents

JUDGEMENT

(1.) The dispute in this appeal relates to certain agricultural plots. The Plaintiff Respondent, Syed Sharafat Husain, as Mutwalli brought the suit giving rise to this appeal in the court of the Civil Judge, Basti for joint possession of the suit plots claiming to be a co -Bhumidhar thereof along with the Defendants first set. A decree for possession was, in the alternative and if found necessary, claimed against Defendants second set who were allegedly the lessees from the Defendants first set of the disputed plots.

(2.) Syed Inayat Husain, the grandfather of the Plaintiff, was co -sharer of two annas nine pies share in various villages. The remaining share of thirteen annas seven pies belonged to Raja Shohrat Singh, the predecessor -in -title of the Defendants first set. Syed Inayat Husain executed an usufructuary mortgage on 22 -3 -1899 in favour of Raja Shohrat Singh of his one anna nine pies share. Then by another usufructuary mortgage dated 8 -5 -1905 Inayat Husain mortgaged the remaining share of one anna in favour of Raja Shohrat Singh. Inayat Husain then executed a Waqf of all his property by means of a waqf deed dated 16 -5 -1906 and by a Tauliyatnama executed on 13 -6 -1913 appointed Plaintiff as one of the Mutwallis along with one Syed Baqar Husain. A subsequent mortgage of the same share of the property was executed by Baqar Husain as Mutwalli in favour of Raja Shohrat Singh on 18 -9 -1920. The Plaintiff, as Mutwalli, then brought suits for redemption of the mortgages and all the mortgages were redeemed in 1949 on payment of the mortgage debt found due. The Plaintiff as Mutwalli got proprietary possession but not over any specific plot. The Plaintiff then brought the instant suit as Mutwalli on the allegation that the plots in dispute were part of the mortgaged property and the Plaintiff as Mutwalli of the waqf had a share in the disputed Sir and Khudkasht plots along with the Defendants first set. It was alleged that the suit plots were Sir and Khudkasht of the mortgagor at the time of the mortgage and even if it were found that the Sir and Khudkasht rights were acquired by the mortgagees on the said plots during the subsistence of the mortgage the acquisition of those rights would be for the benefit of all the co -sharers and the Plaintiff as Mutwalli would become a joint Sir and Khudkasht holder. Certain other Defendants were also impleaded as they claimed to be lessees from the mortgagees and it was pleaded that the leases in their favour were fictitious and were made during the pendency of the suits for redemption in order to deprive the Plaintiff of his rights in the suit plots. It was also alleged that after the abolition of the Zamindari the Plaintiff became a co -Bhumidhar of the Sir and Khudkasht plots in dispute and was entitled to joint possession thereof.

(3.) The suit was contested by all the Defendants except Defendant no. 8 who was impleaded pro forma being the son of Baqar Husain, the co -Mutwalli who had since died. It was pleaded that before the mortgage was executed the disputed plots were Sir of the Defendants and in any case the Sir and Khudkasht rights having been acquired by them as proprietors or Zamindars even during the subsistence of the mortgage, no right in favour of the mortgagors could accrue and the Plaintiff was not entitled to joint possession. The Defendants first set claimed that they were the exclusive Bhumidhars of the suit plots after the abolition of the Zamindari. The defence of the lessees was that the leases in their favour were genuine and they were the Sirdars of the plots. Defendant No. 7 Mahendra Singh who was one of the servants of Shohrat Singh raised a further defence that he being in cultivatory possession of two of the plots in suit in 1359 F. acquired Adhivasi rights therein which ripened into Sirdari and the Plaintiff was not entitled to joint possession thereof. All the Defendants pleaded that the suit of the Plaintiff was barred by limitation. A plea was also raised that there was no waqf in existence and the Plaintiff was not the Mutwalli. Certain other pleas were also raised by the parties which need not be mentioned as nothing turns upon them in this appeal.