GOVIND DUTTA Vs. JAGNARAIN DUTTA

JUDGEMENT

(1.) In the suit which is the subject of this appeal the plaintiff claimed that he was entitled to 16 annas share of Jagir of village Mardua, tauzi No. 2671. The plaintiff alleged that he was grandson of Bhikhari Missir, the previous Raj Purohit, that after the death of Bhikhari Mis-sir his widow Mt. Tota Kuer inherited all his properties. The relationship of the parties will appear from the following pedigree : <FRM>JUDGEMENT_314_AIR(PAT)_1952Html1.htm</FRM> On 8th June 1901, a deed of agreement was executed between Govinddutt and Rewadutt and Mt. Sundarbaso as a result of which Rewadutt was given 4 annas share in properties belonging to Bhikhari Missir. in Aghan 1334 Fs. Ambika Singh father of Kumar Gopal Saran Narain Singh died. The plaintiff officiated as priest at the sradh and defendant No. 5 the Kumar granted to the plaintiff 16 annas proprietary share in village Mardua, tauzi No. 2671, as jagir by making sankalp and samarpan. Rewadutt had no title over any share of Mardua jagir but nevertheless he created a lease in favour of defendant No. 3 with respect to 8 annas share of the jagir. Rewadutt died in Katick 1349 Fs. and after his death defendants 1 and 2 who are his heirs interfered with the possession of the plaintiff. Plaintiff further alleged that defendants 1 and 2 had executed a fraudulent kebala in favour of defendant No. 4 with respect to 3 annas share. The plaintiff hence brought the suit for declaration of his title to eight annas share of the jagir of village Mardua and for recovery of possession thereof. The main ground of defence was that Kumar Gopal Saran Singh had given village Mardua as jagir in equal shares to plaintiff and Rewadutt. After the death of Rewadutt defendants 1 and 2 had been in possession of 8 annas share either direct or through thicadars. It was asserted that the lease executed in favour of defendant no. 3 and the kebala executed in favour of defendant No. 4 were genuine and valid. The learned Subordinate Judge accepted the case of the defendants holding that at the time of the sradh, the Kumar had granted Jagir of village Mardua to the plaintiff and Rewadutt in equal shares, that the plaintiff was not entitled to a declaration of his right with respect to 8 annas share granted to Rewadutt. The learned Subordinate Judge accordingly dismissed the suit.

(2.) On behalf of the plaintiff who has preferred this appeal Mr. Lalnarain Sinha conceded 'in limine' that upon the state of the evidence the plaintiff was entitled to claim only 12 annas share of the jagir of village Mardua and that the plaintiff would not press his claim for 16 annas share as stated in the plaint. Learned counsel conceded that upon the proper construction of the deed of agreement dated 28th June 1901 (Ex. 4) Rewadutt had 4 annas share and Govinddutt 12 annas, share in the jajmanika birit. Learned counsel stressed the argument that at the time of the sradh the Kumar had made gift of the jagir to the Raj Puro-hit without specifying the exact share of Rewadutt or Govinddutt. It was contended that the learned Subordinate Judge ought to have accepted the plaintiff's evidence and held that village Mardua was granted in jagir to the Raj Purohit and in consequence the plaintiff had 12 annas share in village Mardua and Rewadutt had the remaining 4 annas share. In my opinion, the argument addressed by the learned counsel is well-founded and must succeed. (After discussion of the evidence the Judgment proceeded :) In my opinion, the evidence adduced on behalf of the plaintiff is. much superior to that given on behalf of the defendants and the finding of the learned Subordinate Judge that Rewadutt was given eight annas share of Mardua at the time of the Saradh cannot stand. I would accept the evidence adduced on behalf of the plaintiff and hold that at the time of the saradh Maharaj Kumar Gopal Saran Singh made a gift of village Mardua to the Raj Purohit without specifying what share Govinddutt or Rewadutt ought to enjoy therein.

(3.) But there is sufficient evidence on the record to suggest that after the gift was made, Govinddutt and Rewadutt jointly entered into possession of village Mardua, Govinddutt appropriating 12 annas share of the income and Rewadutt the remaining 4 annas share. (After discussion of the evidence the judgment proceeded :)