RAGHUNANDAN PRASAD Vs. AJODHYA SINGH

JUDGEMENT

(1.) This and the connected Second Appeal No. 1071 of 1927 arises out of the same suit brought by the plaintiffs-appellants for a declaration of their exclusive right to recover rent of 1553 acres of land detailed in list (6) at foot of the plaint as land appertaining to the share of 8 annas held by them in mortgagee- possession. The Court of first instance decreed the suit in its entirety. The lower Appellate Court has dismissed it. The appeals were preferred in the lower Appellate Court one by all the five defendants to the action and the other only by Sheobadan Singh, defendant No. 2 and Baijnath Singh, defendant No. 3, Both the appeals having been allowed by the lower Appellate Court, the plaintiff had to file two appeals. The connected Appeal No. 1271 is from the decree of the lower Appellate Court passed in the appeal preferred by Sheobadan Singh and Baijnath Singh. It relates only to five plots to which the decree in Suit No. 230 of 1921, passed by the Munsif of Kirakat relates. The plaintiffs appellants also seek a declaration that the aforesaid decree does not affect their interest in those plots. It is convenient to deal with the plaintiffs suit as a whole passing separate orders on the connected Appeal No. 1271 so far as the five plots in dispute in that appeal are concerned.

(2.) The pedigree given at page 20 of the paper book in the judgment of the Court of first instance will explain the position of the parties. The village Parhwa, District Jaunpur is olvidea into two patties; (1) Patti Balbhaddar Singh of 10 annas 8 pies and (2) Patti Muneshar Singh of 5 annas 4 pies. This litigation is not concerned with the latter patti. In the former patti the share of Balbhaddar Singh was 8 annas. The remaining 2 annas 8 pies belonged to Baijnath Singh and Sheonath Singh defendants Nos. 3 and 4, to the extent of 1 anna 4 pies, to Sheobadan Singh, defendant No. 2, to the extent of 1 anna and to Gayadin Singh, defendant No. 5 to the extent of 4 pies. The specific plots amounting in area to 1555 acres mentioned in list (k) already referred to were sir plots in Patti Balbhaddar Singh. The principal question in dispute in the appeal is whether they should be regarded as the sir exclusively of Balbhaddar Singh the co-sharer of 8 annas, or as appertaining to the entire patti of 10 annas 8 pies so that the other co-sharers of Balbhaddar Singh had a proportionate share in them as their sir. The shares of defendants Nos. 2 to 5 are held by defendant No. 1 as mortgagee with possession under several mortgage deeds. Balbhaddar Singh's 8 annas share was mortgaged with possession to one Kishen Dat by a deed dated 18 November, 1902: Ex. 4. It purports to transfer not only the share but the entire sir now in dispute. The mortgagee's possession, over the "sir" plots was the subject of a contest in the Revenue Court at the instance of Sheobadan Singh defendant No. 2, and father of Gayadin Singh defendant No. 5. The entire sir land was recorded in the name of Balbhaddar Singh at that time and the Revenue Court treated it as his sir exclusively directing the same to be recorded as the ex-proprietary tenancy of Balbhaddar accruing on the execution of the usufructuary mortgage-deed dated 18 November, 1902. Accordingly ex-proprietary rent of Rs. 65-8-3 was fixed by an order of the Revenue Court dated 31 May, 1905: Ex. 3.

(3.) Balbhaddar Singh having died in the meantime his son Jagat Bahadur Singh executed a deed of usufructuary mortgage on 21 June, 1919, in favour of Lal Bahadur Singh plaintiff No. 2 in respect of the 8 annas share belonging to him. The deed expressly exempts the "sir" lands from the operation of the mortgage. A few months later on 22nd September, 1912, Jagat Bahadur Singh sold his rights in the 8 annas share to Kishan Dat the mortgagee under the first deed executed by him on 18 November, 1902, relinquishing the ex-proprietary rights in his favour.