KASHI PRASAD Vs. AMBIKA PRASAD

JUDGEMENT

(1.) This is an appeal against a judgment of a learned Judge of this Court and the only question for the decision is what is the legal effect of the decision said to have been given under Section 42, Land Revenue Act?

(2.) The facts which have given rise to this appeal, briefly, are as follows: One Mahesh Prasad was recorded in the revenue papers as the occupancy tenant of certain holdings. He was a first cousin of the plaintiff Kashi Prasad and his brother Bindeshri Prasad. In the lifetime of Mahesh Prasad his sister's three sons, Ambika Prasad, Bhagwati Prasad and Kedar Prasad who were the first three defendant in the suit, out of which this appeal has arisen, made an application to the revenue Court to have their names recorded along with that of Mahesh Prasad, on the ground that they were Mahesh Prasad's sister's sons and were joint in cultivation with him. Bindeshri Prasad, defendant 4 in the suit, who is the elder of the two brothers, namely himself and Kashi Prasad, filed an objection in the revenue Court. Before any decision could be arrived at Mahesh Prasad died. Then the question arose as to whose name should be recorded in the revenue papers in place of Mahesh Prasad. The case of Bindeshri Prasad was that Mahesh Prasad was only nominally a tenant, but as a matter of fact, Bindeshri Prasad and his brother Kashi Prasad were the tenants of the holding and they alone were in possession of the same. On behalf of Ambika Prasad and his brothers, the contention was that they, as the nephews of Mahesh Prasad and as persons who were jointly cultivating the holding, should be entered in the revenue papers. The zamindar, a lady, Roshna Khatun was made a party to the proceedings. It appears that she, to start with, denied that either of the parties was entitled to be entered in the village papers in place of Mahesh Prasad, but, later on she received a nazrana of Rs. 100 from Ambika Prasad and his brothers and she agreed to the entry of these persons names in the village papers. The Assistant Collector took up the matter and came to the conclusion that Mahesh Prasad was the real tenant of the holding and that Bindeshri Prasad and Kashi Prasad were not the tenants. He also held that although Bindeshri Prasad and Kashi Prasad were collateral relations of Mahesh Prasad they could not succeed to him because they were not in joint cultivation during the lifetime of Mahesh Prasad. As regards Ambika Prasad and his brothers the Assistant Collector was of opinion that they too could not succeed. They were not among the heirs enumerated in Section 22, Tenancy Act of 1901, although they were cultivating the holding jointly with Mahesh Prasad. In the result, the Assistant Collector, having found that Ambika Prasad and his brothers were actually in possession, directed that their names should be recorded as non- occupancy tenants, holding for a period of one year. He rejected the application of the zamindar that Ambika Prasad and his brothers should be recorded as occupancy tenants of the holding.

(3.) After this litigation in the revenue Court, Kashi Prasad filed the suit in the civil Court and he prayed for the following reliefs. He asked that it might be declared in favour of himself and his brother defendant 4 that they were the tenants of the several holdings in suit. Failing this declaration he asked for possession of the holdings jointly with his brother Bindeshri Prasad. Lastly, he asked for costs.