BILAT SINGH Vs. HAFIZ SYED SHARFUDDIN AHMAD

JUDGEMENT

(1.) There were, in all one to thirty defendants in the suit giving rise to this appeal; but this appeal has been filed by defendants other than defendants 5, 5(c), 5(d), 5(e), 13(a), 20, 23 (b) and 30. The defendants who have filed this appeal belong to the group of the. defendants-first-party. The suit, giving rise to this appeal, was instituted by the sole plaintiff (respondent No. 1), claiming himself to be the mutwalli of Soghra Waqf Estate. The plaintiff asked for declaration of title in respect of the disputed lands, and that the defendants-first party were not the settlees of any piece of land either from the said waqf estate or from the thikadar of that estate. The plaintiff wanted a temporary injunction against the defendants-first party and defendant No. 30 (defendant-second-party), restraining them from proceeding with the arbitration in accordance with the provisions of the Bihar Bakasht Disputes Settlement Act (13 of 1947). Another relief was added in the plaint to the effect that, on an adjudication of the plaintiff's title to the disputed lands, which were the raiyati lands of the plaintiff under the provisions of the Bihar Land Reforms Act since after the vesting of the estate in the State of Bihar, the Court should pass a decree for confirmation of possession or, in the alternative, grant a decree for recovery of possession, in respect of the suit lands. The lands in question measure 71 bighas 3 kathas, and they appertain to survey plot No. 574 of khata No. 1 in village Pachbhinda, tauzi No. 7297, in the district of Darbhanga.

(2.) The case of the plaintiff, in short, was that he was the mutwalli of the Soghra Waqf Estate, and the lands in suit were the bakasht lands appertaining to the said waqf estate. The suit lands were throughout in possession of the said estate. At one time, village Pachdhinda, to which the said lands appertain, was leased out to one Nandlal Singh, and hence those lands came to be recorded as the bakasht lands of that lessee in the record-of-rights. The lease, however, expired, and then the lands in suit and other lands came in khas possession of the waqf estate, and the produce thereof (the thatching grass) used sometimes to be sold to thikadars under registered leases and sometimes orally. On certain occasions, hukumnamas were being issued in respect of those lands, but the income received from the settlement always used to be credited in the accounts of the waqf estate. The disputed lands were converted into culturable lands in the year 1950 on behalf of the waqf estate, and paddy, tobacco, chillies and mustard were grown in portion of the suit lands in 1951 on behalf of the estate. The defendants-first-party, however, happened to be the leaders of the Kisan and Socialist parties, and they conspired together to create trouble and interfere with the possession of the waqf estate in respect of the lands in suit, with the result that there were various criminal proceedings in the years 1948, 1949 and 1950, such as proceedings under Sections 379 and 147 of the Indian Penal Code. The defendants-first-party falsely made out that they had paid a sum of Rs. 3,155/- as salami to Muhammad Sulai-rnan, the gomashta of the waqf estate, and the said gormashta had settled the lands in suit in portions with some of the defendants, and those settlees had paid rent and obtained receipts from the waqf estate. Subsequently, there was a proceeding under Section 144 of the Criminal Procedure Code, but, later on, it was converted into a proceeding under Section 145 of the Criminal Procedure Code, and the lands in suit were attached by the learned Magistrate under Section 145(4) of the Criminal Procedure Code on the 14th December, 1951, with the result that the lands were still under attachment, and they were custodia legis. The defendants first-party filed a petition before the District Magistrate for referring the dispute to the Board in accordance with the provisions of the Bihar Bakasht Disputes Settlement Act, and the District Magistrate, by his order dated the 20th January, 1954, granted the prayer of the defendants-first-party, and referred the case to an Arbitration Board. The defendants-first-party nominated defendant No. 30 (defendant-second-party) as an arbitrator, but the plaintiff did not participate in that proceeding, and did not make any nomination of any arbitrator on his behalf. In these circumstances, in view of the false pretext of settlement from the waqf estate made out by the defendants-first-party, it became necessary for the plaintiff to institute the present suit on the 15th May, 1955, for the reliefs already indicated.

(3.) The case of the defendants-first party, on the other hand, was that the lands in dispute were not the bakasht lands of the waqf estate, and the said estate was not in khas possession of the lands in suit. They alleged that, during the subsistence of the lease in favour of Nandlal "Singh, the entire lands in dispute, along with other lands, were settled permanently in specific portions as described in schedule A of the written statement with the various defendants or their ancestors for agricultural purposes on acceptance of salami, and the said Nandlal Singh had granted rent receipts to the different settlees in 1322 Fasli. The ancestors of those defendants and the defendants came in possession of the specific arears as raiyats, and their permanent tenancy rights were fully recognised even by the; waqf estate after the expiry of the lease in favour of Nandlal Singh. The waqf estate did not convert the lands into culttirable lands either in the year 1950 or subsequently. The settlees brought the lands, under, cultivation with the exception of a small area of about 4 bighas in different parcels, and that small area was left as kharhaur for the grazing of the cattle belonging to those defendants. Those defendants, who happened to be the settlees, were the settled raiyats of village Pachdhinda, and, as such, they acquired occupancy rights in respect of the lands in suit. A sum of Rs. 3,155/- was paid to Muhammad Sulaiman, gurnashta of the plaintiff, on the 4th March, 1947, as salami for confirming the settlement of the entire lands, and one Pargash Singh, another employee of the waqf estate, had admitted in a compromise petition that the lands were settled with the various defendants, and they were in possession of those lands throughout. According to them also there was, at first, a proceeding under Section 144 of the Criminal Procedure Code, which was, later on, converted into a proceeding under Section 145 of the same Code, and, in order to avoid the protracted proceeding under that section, they had taken steps to get the dispute decided by the Arbitration Board; but the plaintiff, being apprehensive of his title and possession, rushed to the Civil Court by filing the present suit in order to harass the defendants; Schedule A of the written statement gives the names of some of the defendant's who were the settlees and the areas which were settled with them and the boundaries and other details of those lands have been described in 37 items of that schedule.