RAJ RANJAN PRASAD SINHA Vs. KHOBHARI LAL

JUDGEMENT

(1.) These are appeals by defendants 1 to 5, the contesting defendants in the two suits out of which they have arisen.

(2.) Plaintiffs were the five anna proprietors of two tauzis in mauzas Ramdhanpur and Chakia, and the defendants proprietors of nine annas in those touzis, while the proprietor of the remaining two annas was joined as a pro forma defendant. The suits were brought for recovery of the plaintiffs proportionate share of the neb produce of certain lands by way of compensation on the allegation that the lands were bakhast and had been cultivated by the contesting defendants to the exclusion of the plaintiffs. The substantial defence was that the lands had been cultivated not by or for these defendants but by defendant 6 as a tenant of the sixteen annas proprietors. The trial Court rejected this plea and held that defendant 6 was the ziratia of these defendants. It found the produce claimed to be excessive, and decreed the suits in part. Defendants 1 to 5 appealed, and there was a cross-objection by the plaintiffs. The lower appellate Court agreed with the trial Court as regards how the lands were used by defendants 1 to 5 to the exclusion of their cosharers, the plaintiffs, but saw no reason to reduce the produce claimed by the plaintiffs in the manner adopted by the trial Court.

(3.) It was contended before us on behalf of, the apellants that there was no allegation of the plaintiffs ouster in the plaints, and that, therefore, they should not have been allowed to make out such a case in the evidence, and that it should have been held on the case set up in the plaints that the plaintiffs were entitled to no compensation at all.