SUBEDAR JIWAN SINGH Vs. RAM KISHAN AND OTHERS

JUDGEMENT

(1.) THIS is an appeal under clause X of the Letters Patent and is directed against the decision of learned Single Judge of this Court reversing the decision of the lower appellate Court which in turn reversed the decision of the trial Court dismissing the plaintiffs' suit. On the facts of this case there is no dispute. One Biroo by four deeds executed on September 28, 1912, and the fifth deed executed on July 13, 1913, purported to transfer occupancy rights in land measuring 68 kanals 13 Marias of which he was the full owner to the predecessors -in -interest of the defendants. The collaterals of Biroo, the predecessors -in -interest of the present plaintiffs, brought the usual declaratory suit under custom to challenge all the five deeds on the ground that, in fact, the land had been sold by Biroo and the sales had been given the garb of creation of occupancy tenancy. It was also alleged that the land in suit was ancestral and, therefore, it was prayed that these sales be held to be inoperative as against the reversionary rights of the collaterals. This suit was contested by the predecessors -in -interest of the present defendants. The only issue in this suit with which we are at the moment concerned is issue No. 1, which is in these terms:

(2.) ON this issue the trial Court found that "the land in dispute has really been sold to defendant No. 2 and the transaction ingeniously clad in the garb of occupancy tenure to be converted into manifest sale at a suitable time in the future to keep off for the present the reversioners and the pre -emptors. "After determining the remaining issues, the trial Court granted a declaratory decree to the effect that after the death of defendant No. 1, that is, Boiroo," defendant No. 2 shall have no right in the land in dispute against the plaintiffs. Defendant No. 2 preferred an appeal to the learned District Judge who by his order dated December 7, 1916, rejected the same. On the question of the nature of the transactions, the learned District Judge gave the following finding:

(3.) ON the death of Gurdevi, the plaintiffs have brought the present suit against the defendants for possession of the land in pursuance of the declaratory decree already referred to. This suit was dismissed by the trial Court All the issues were found in favour of the plaintiffs excepting issue No. 7, which is in these terms: