SUKHDEO DUBEY Vs. RAM PRASAD DUBEY

JUDGEMENT

(1.) This appeal is directed against the judgment of Shib Chandra Prasad, J., who allowed the appeal from the judgment of the learned Additional Subordinate Judge I, Hazaribagh. He allowed the appeal setting aside the judgment of the learned Munsif of Hazaribagh. The trial court decreed the suit. The present appeal has been preferred by defendant Nos. 1 and 2, The suit was brought for a declaration that the plaintiffs-respondents wove entitled to -/4/9 3/4 pies interest in the lands described in schedule 'Kha' of the plaint. They sought the relief of confirmation of possession and, in the alternative, if they were found to be out of possession, for recovery of possession by dispossessing the defendants-appellants. They also prayed for carving out the patti of their own share separately by appointment of a commissioner by the court. The plaintiffs' case was that they and the defendants were residents of the same village, viz. Tatra, and were also related as gotias. They entered into an agreement with the defendants for taking settlement of the suit lands. The agreement was dated the 2lst of May, 1947, and was an unregistered document. The circumstances in which the agreement was entered into wore, as stated in the plaint, that near Tatra there were two villages, Koiria Nawada and Kami. Bisunlal Singh, who was a Mokhtar, hold eight anna proprietary interest in village Koiria and -/10/6 proprietary interest in village Kami. He intended to Kettle his bakasht and ghair mazrua lands lying in these two villages on raiyati basis. Accordingly, the parties Approached the landlord for taking settlement of the lands in the two villages. It appeared to them, however, that if they would enter into a competition the rate of salami payable to the landlord might lie enhanced; hence, they came to an amicable arrangement that they should take settlement of the bakasht land of both the villages contributing their share of the salami according to the extent of their interest, The amount fixed as salami was Rs. 4,000/- and the annual rent was Rs. 150/-. Accordingly, the plaintiffs and defendants Nos. 2 to 5 executed a deed of agreement before the execution of the patta by the landlord. In accordance with their previous decision, they mentioned it in the agreement that the shares of the parties in the land to be taken in settlement in the two villages would be as mentioned in schedule 'Ka' of the plaint. The patta to be executed by the landlord would show the payment of Rs. 2,000/- only as salami although the amount actually to be paid was Rs. 4,000/-, This device was adopted in order to save the higher cost of the stamp to be affixed on the document.

(2.) The defence case, on the contrary, was that the sum of Rs. 2,000/- mentioned as salami was the correct amount. The plaintiffs did not pay anything towards that amount. The land in suit was taken in settlement by the defendants on their own account with which the plaintiffs had no concern. They wore put in possession by the landlord. The deed of agreement, however, was executed by them allowing the plaintiffs to take a shave in the land to be settled, because the plaintiffs held out threats of going to the landlord and pushing up the amount of salami by offering to take settlement themselves at a higher rate, Nothing, however, was contributed by the plaintiffs towards the salami payable in respect of the lands in suit and the plaintiffs acquired no interest therein.

(3.) The learned Munsif, however, acting mainly upon the deed of agreement (exhibit 1), held that the plaintiffs were entitled to claim a share in the lands settled by virtue of the agreement contained in Exhibit 1. He accepted the plaintiffs' case with regard to the salami being fixed at Rs. 4,000/- and not at Rs. 2,000/-. He also accepted the plaintiffs' evidence that they paid their share of the salami due to defendant No. 1 Sukhdeo Dubey. On appeal, however, the learned Additional Subordinate Judge, on a consideration of the evidence led by the parties, came to the conclusion that the salami payable was only Rs. 2,000/-ancl, in fact, the landlord would not have agreed to have a lower amount mentioned in the patta. He held also that the plaintiffs' story of having contributed their share of the salami money was not substantiated. He held against the plaintiffs even on the question of their possession of the suit land. He agreed, however, with the learned Munsif in so far as his finding on the deed of agreement (Exhibit 1) was concerned, i.e., he also came to the same conclusion that there was no undue influence exercised by the plaintiffs in obtaining the deed of agreement. He held, further that the actual settlement was not made in favour of the plaintiffs as well along with the defendants, because, if that were so, there was no reason why the names of all the parties would not be mentioned in the patta itself. He negatived the case of the plaintiffs that defendants Nos. 1 to 3 were farzidars of the plaintiffs in respect of their interest of four annas and odd and that the transaction was benami. It may be stated that the lawyers for both the parties in the court of the learned Additional Subordinate Judge directed their argument to the question of banami. The learned Additional Subordinate Judge, however, for good reasons, came to the conclusion that the plaintiffs' case of benami settlement had no foundation. Accordingly, he allowed the appeal and dismissed the suit.