SECHAN Vs. RAM CHANDRA BAHADUR

JUDGEMENT

(1.) This is a defendant's appeal in a suit for resumption of plots 498 and 501 in mauza Nawapura, district Banaras under Section 195, U. P. Tenancy Act on the allegations that those plots had been a service grant (Moafi Khidmati) to the defendant's ancestor and that the service being no longer required by the plaintiff-zamindar the same were liable to be resumed.

(2.) The defence taken was that the defendant had become the proprietor of the plots and that, in view of Sections 191 and 192 of the said Act, the plaintiff was not entitled to resume them.

(3.) This litigation has had rather a chequered history, and it would be convenient to refer briefly to the various stages through which it has run. On 20-2-1942, the suit was originally dismissed on the merits. On 15-6-1942 an appeal against this decree to the Collector was also dismissed. On 2-3-1943, the Commissioner in second appeal set aside both these decrees on the view that an issue of proprietary title should have been referred by the revenue Court to the civil Court under Section 286 U. P. Tenancy Act. The civil Court having received such an issue found that the defendant was not the proprietor. Then the Sub-Divisional Officer, on receipt of this finding, accepted the same and should in the ordinary course have decreed the suit. He, however, dismissed it on the finding that the grant in this case was of a date prior to the permanent settlement and that, therefore, under Section 191 (1) (a) of the said Act the plaintiff could not eject the defendant. This decree was set aside in appeal on 9-2-1945, and the appellate Court remanded the case to the Sub-Divisional Officer with the direction that the matter should be approached from a different stand-point. Then, on 30-11-1946, the Sub-Divisional Officer decreed the suit for ejectment on the finding : (1) that the area recorded as Moafi in the register of Moafiat in 1197 Fasli in the name of Dasrath Hajjam, defendant's ancestor, being only 8 biswas and the area now in dispute being 0.61 acre, the latter did not tally with the former and was, therefore, quite different from the same and (2) that the grant was a service grant, as entered in the Khatauni of 1291 Fasli, within the meaning of Section 192 (2) (c).