RANI DULLAIYA AND ANOTHER Vs. GANGA PRASAD

JUDGEMENT

(1.) THIS second appeal came up for hearing before an Hon'ble Single Judge of this Court, when the learned Single Judge referred the appeal for decision to a larger Bench as he found that the question involved in the case are questions of some importance and that there was no authoritative decision relating to these questions. This is how this second appeal has come up before this Bench.

(2.) THE Appellant was a Defendant in the suit giving rise to the second appeal. The case with which the Plaintiff came to Court was that he was granted a theka of the land in suit by Sutan Singh husband of Defendant Smt. Rani Dullaiya and a registered deed was executed on 20 -6 -1938. The theka was to run upto 1358 Fasli and the Plaintiff was to pay Rs. 1,400/ - in a lump sum besides an yearly payment of Rs. 100/ - during the continuance of the theka. After the theka period expired, Defendant filed suit for redemption but it was dismissed. The Plaintiff thereupon started proceedings Under Section 145, Code of Criminal Procedure. The Magistrate gave a finding against the Plaintiff in respect of three -fourth of the land in suit. The Plaintiff, therefore, proceeded to file the instant suit for a declaration that he is sirdar or in the alternative adhivasi or asami of the land in suit. Defendant No. 2 was added as a party because the Plaintiff had been informed that Defendant No. 2 held himself out to be the adopted son of Defendant No. 1. The suit was not contested by Defendant No. 2. Defendant No. 1 alone contested the suit on the ground that the Plaintiff was neither sirdar nor adhivasi of the land in suit. After the expiry of the theka period, the Defendant No. 1 came into possession of the entire land in suit. On account of the intervention of some persons, a private settlement was arrived at between the parties as a result of which a portion of the land measuring 30 -15 acres towards western portion of the land was retained by her and the remaining area of the land which was almost one -fourth of the entire land and towards east, was allowed to remain in possession of the Plaintiff. The Defendant had been in possession of that portion of the land which came to her under that agreement and the suit consequently was barred by Section 42 of the Specific Relief Act.

(3.) ON appeal preferred by the Plaintiff, the learned Additional Civil Judge, Orai found that the Plaintiff became hereditary tenant and sirdar in respect of the plot in suit lying towards east in respect of which a declaration was made by the appellate court. With regard to the remaining area of the land in suit, namely, 30.15 acres, suit for declaration was dismissed as the Plaintiff was not in possession of that area. The second appeal under consideration has been filed by the Defendant against that decision of the lower appellate court.