BARKAT ALI Vs. MUMTAZ ALI KHAN

JUDGEMENT

(1.) This appeal arises out of a suit instituted by the respondents for a declaration that they are owners to the extent of a half share in plots Nos. 745 and 747 situated in village Mandah in the district of Partabgarh.

(2.) The trial Court found that the title of the plaintiffs was not established and it dismissed the suit. The plaintiffs went up in appeal. The learned lower appellate Court found that the plaintiffs' title was established and that there was no question of res judicata by reason of any previous litigation. It consequently reversed the decree of the trial Court and decreed the plaintiff's suit. The defendants came up in second appeal. One of them Mohd. Ali Khan, appellant 2 died during the pendency of the appeal and his heirs not having been brought on the record the appeal so far as his share is concerned abated.

(3.) It seems that as eaxly as 23-5-1869 the taluqdar of Madhpur granted a patta istamrari of certain plots of cultivatory land including plot No. 185 (which now corresponds to plot No. 747) to one Paran Khan. Paran Khan had two bro thers, one of whom Rahman Khan has left no male issue. The other Anwar Khan left issues and the plaintiffs are his successors. The plain tiffs instituted the suit out of which, this appeal arises claiming that the patta istamarari in favour of Paran Khan was for the benefit of the family and not only of Paran Khan. Since Rahman Khan has left no persons com-petent to succeed to the property, half of the property was claimed. With regard to plot No. 745 (which corresponds to old number 184 of the first settlement) a title was set up which was not based on the patta istamarari but upon a decree obtained by Paran Khan as a result of the litigation with the taluqdar.