S SAFDAR ALI Vs. AMBIKA PRASAD DUBE

JUDGEMENT

(1.) These two appeals arise out of two suits brought by Pandit Ambika Prasad Dubey for ejectment of one Safdar Ali, who has since died and is now represented by one of his sons, the appellant in Appeal No. 1263 of 1927. The respondents in Appeal No. 6 of 1929 are all of his heirs, including the appellant in Appeal No. 1263 of 1927. The land in dispute was occupied by Safdar Ali, who had a stock of wood and some residential quarters on it. Originally it belonged to two brothers, Dwarka Prasad and Jwala Prasad. By a certain partition in the family the land in its entirety has fallen to the share of the plaintiff, who is the son of Dwarka Prasad. As the names of certain persons occur in the documents, which we shall have occasion to refer to, it is necessary to state at the outset what position they occupy in relation to this matter. The following, pedigree will elucidate the facts:

(2.) It will be seen that Jwala Prasad had a son Ram Prasad. The latter's widow was Mt. Bishen Kuer, who was minor at the time certain documents were executed on her behalf by her mother, Mt. Ketki Kuer acting as her guardian. Dwarka Prasad and Jwala Prasad became the owners of this land, while still minors some time before 1890. Their affairs were managed on their behalf by Mt. Lalmati, their father's maternal grandmother. It was Mt. Lalmati, acting as guardian of Dwarka Prasad and Jwala Prasad, who allowed Safdar Ali to occupy the land in suit under some arrangement in 1890. It is said to have been a lease, but no lease has been produced and there is no evidence in proof of one. The first document to which the defendant's possession can be traced is a raiyat nama, dated 12 November 1894, executed by Safdar. Ali in favour of Mt. Lalmati as guardian of Dwarka Prasad and Jwala Prasad. It recites the fact that Safdar Ali had been occupying certain premises as a raiyat of the aforesaid two minors, that he had his stock of wood and bamboos thereon for a certain length of time, that a sum of Rs. 136-2-8 was paid by the executant as rent (kiraya) in advance for four years, viz. 12th November 1894 to 12 November 1898, that the executant would fee entitled to retain possession during the period for which rent had been paid and that on vacating the land he would remove the materials of the constructions already made by him and of those he might make thereafter. No corresponding document executed on behalf of Dwarka Prasad and Jwala Prasad came into existence, and the raiyatnama executed by Safdar Ali, which it should be mentioned was not registered, was the only evidence of relationship as existed between the grantors and the grantee.

(3.) On 21 February 1900, Dwarka Prasad issued a notice to Safdar Ali warning him that he would nob be entitled to costs of construction which he was then making and that he would have to remove materials on ejectment. The notice concluded with a demand for a sarkhot to be executed by Safdar Ali within a week. It appears that the two brothers Dwarka Prasad and Jwala Prasad had arrived at some understanding between themselves by which each was enabled to realize his half share of rent from Safdar Ali. Accordingly we have a receipt dated 6 August 1901 for a sum of Rs. 229 executed by Dwarka Prasad in favour of Safdar Ali. There is another receipt dated 26 July 1902 executed by Jwala Prasad in favour of Safdar Ali for Rs. 220. Both the receipts cover a period of about 8 years for which rent was realized by the two brothers in advance.