TULSI NARAYAN SINGH Vs. BAIJNATH RAM

JUDGEMENT

(1.) This second appeal by the plaintiff is from a concurrent decision of the Courts below dismissing a suit brought by the appellant in respect of about 4 bighas of land recorded in khewat No. 5/1 of village Bhatudih. The appellant said that village Bhatudih was one of the villages in Gadi Bharkatta, of which the appellant and before him his ancestors, were the proprietors in possession. It was alleged that one of the ancestors of the appellant, Thakur Darip Singh, gave to Hardeo Mahto, who was the ancestor of 'pro forma' defendants 5 to 8 and 'thikadar' of village Bhatudih, 2 bighas of land in 'Jalsasan' settlement as a service tenure for keeping under repairs an 'ahar' called Sonamunda Ahar. The grant was made by means of a 'patta' dated the 29th Chait, 1220, Fasli. After the death of Thakur Darip Singh, Thakur Brij Mohan Singh succeeded to the 'gaddi'. He, in his turn, made a grant to one Pran' Mahto, the son of Hardeo Mahto, of 2 bighas of paddy land for performing the duties of a Mahto, and 4 bighas of paddy land in 'Jalsasan' settlement. The settlement was made in 1231 Fasli under a Sanad dated the 30th Mash, 1231 Fasli. The appellant's case was that the grant constituted a service tenure, subject to the burden of repairing the 'ahar' called Sonamunda Ahar. In the survey record-of-rights, the 'Jalsasan' lands were recorded in three khewats, khewats Nos. 5/1, 5/2 and 5/3, and the Mahatoai lands were recorded in khowats, 0/1, 6/2 and 6/3. The 'pro forma' defendants 5 to 8 were recorded in khewat No. 5/1. It was alleged that some eight or ten years before the institution of the suit the 'pro forma' defendants and their cosharees had ceased to repair the 'ahar', as a result of which Sonamunda Ahar was almost in a dilapidated condition. The appellant then got ready to institute a suit for recovery of possession of the lands, when on 12-2-1945, the 'pro forma' defendants executed a registered deed of surrender in respect of the lands of Khewat No. 5/1. The appellant said that he came in possession, of the lands on surrender by the 'pro forma' defendants. The 'pro forma' defendants had, however, transferred the lands by means of a usufructuary mortgage in favour of defendants 1 to 4. This was in 1924. On the foot of the mortgage an action was brought, which was numbered Suit No. 150 of 1943. Defendants 1 to 4 obtained a decree, and the decree was put in execution in Case No. 77 of 1345. The land was sold in execution of the decree for a sum of Rs. 1000/- and purchased by the decree-holders on 19-11-1945. The case of the appellant was that the 'Jalsasan' service tenure of the 'pro forma' defendants was not transferable, and the appellant was not bound by the mortgage decree or the proceedings taken in execution of that decree. On these allegations the appellant prayed for a declaration that the grant made in favour of the ancestor of the 'pro forma' defendants was the grant of a service tenure, not transferable by the grantee and resumable by the grantor on the failure to perform the service, namely, repairs of Sonamunda Ahar. The appellant further prayed for an adjudication that the service tenure had come to an end by virtue of the surrender made by the grantee on 12-2-1945, and that tne decree passed in the mortgage action and the proceedings in execution thereof were not binding on him. The appellant asked for confirmation of possession or, in the alternative, recovery of possession.

(2.) The suit was really contested by defendants 1 to 4 who are the principal respondents before me. Their case was that the grant was not in the nature of a non-transferable, resumable service tenure, burdened with the condition of repairing Sonamun-da Ahar; on the contrary, the grant was an absolute grant of a rent-free tenure in perpetuity in which the tenant has an unrestricted right of transfer. It was alleged the Sonamunda Ahar was not excavated by the appellant's ancestor; rather it was excavated by the tenant and the grant was made to compensate him for the expenditure incurred in constructing the 'ahar.' The deed of surrender was alleged to be collusive, invalid, inoperative and hit by the doctrine of 'lis pendens'. It was stated that the entry in the record-of-rights With regard to the khewats 5/1, 5/2 & 5/3 were correct entries; the decree in the mortgage action was a valid decree and the proceedings taken in execution were valid proceedings binding on the 'pro forma' defendants and the appellant.

(3.) Serveral issues were framed by the learned Munsif of Giridih who dealt with the suit in the first instance. It is unnecessary to refer to those issues. In substance, the learned Munsif found (1) that the 'Jalsasan' lands which had been granted to Pran Mahto, of which the lands in suit are a part were non-resumable and transferable; (2) the grant was not-subject to any condition of service like the repair of Sonamunda Ahar; rather Sonamunda Ahar was constructed by the tenant himself; (3) the deed of surrender was collusive and Inoperative; it was executed in order to deprive the contesting defendants from the fruits of the mortgage decree; and (4) the suit was barred by the time inasmuch as the 'rehan' in favour of the contesting defendants was executed more than twelve years ago and the appellant had failed to prove possession within twelve years of the suit. Before the learned Subordinate Judge who heard the appeal, the points urged on behalf of the appellant were two in number, namely, (1) the 'Jalsasan' grant was in the nature of a service tenure, resumable on the non-fulfilment of the condition of service, & non-transferable in character and (2) that the appellant acquired a good title to the land by virtue of the deed of surrender dated 12-2-1945. The learned Subordinate Judge affirmed the finding of the learned Munsif that the grant was not in the nature of a service grant, subject to the condition of keeping Sonamunda Ahar in repair; he also affirmed the finding of the learned Munsif that the grant was a grant of rent-free tenure in perpetuity in which the tenant had an unrestricted right of transfer. As to the deed of surrender the learned Subordinate Judge again affirmed the findings that it was collusive and inoperative. He further held, differing from the learned Munsif, that the surrender was hit by the doctrine of 'lis pendens.' On these findings the learned Subordinate Judge dismissed the appeal.