(1.) The subject of dispute in the suit out of which this appeal arises was an area of 15.427 acres of land described as "Ahata Godam Nil" situated in village Bahadurpur in the district of Azamgarh. The plaintiff-respondents originally claimed a declaration that they were the owners of the land in dispute and were entitled to have their names recorded in the khewat. This relief was however not granted to the plaintiffs by the trial Court and, in the lower appellate Court, the plaintiffs confined their claim to a declaration that they were entitled to possession and to make collections and appropriate the produce of the plots in dispute. They also prayed for an injunction restraining defendants second and third parties from causing interference in the plaintiffs collection of rent and appropriation of the produce of the plots in dispute. In the alternative the plaintiffs had claimed possession of the area in dispute. The plaintiffs claimed to be entitled to the reliefs mentioned above on the basis of a sale deed dated 31 July 1928, executed under circumstances hereinafter mentioned. Defendants second and third parties were the zamindars of the village and defendants first party were the vendors of the plaintiffs. The suit was contested by defendants second party who maintained that the area in dispute was agricultural land and the position of the vendors of the plaintiffs was at best that of occupancy tenants. They therefore maintained that the vendors of the plaintiffs had no right to transfer the area in dispute to the plaintiffs, and that the plaintiffs had not acquired any title to the area in dispute by virtue of the purchase made by them. The trial Court dismissed the suit. But on appeal by the plaintiffs the lower appellate Court passed a decree declaring that the plaintiffs held the land in dispute under a permanent tenure subject to the payment of Rs. 88-2-0 to the zamindars and their right is transferable and heritable.
(2.) The history of the area in dispute is involved in some obscurity, but it is common ground that this land was originally let and was utilized for the purpose of building and running an indigo factory. This happened either towards the close of the eighteenth or the beginning of the nineteenth century. It appears from the Gazetteer of Azamgarh district (vide p. 56) that one Mr. Crommelin, Commercial Resident of the East India Company at Azamgarh, erected an indigo factory on the plots of land in dispute in-the year 1807, and that at the time of the mutiny the factory was owned by one Mr. Venables. There was a steady decline in the indigo industry since 1877 and all the indigo factories in Azamgarh, whether owned by Europeans or by Indians, had fallen on evil days. There are no copies, of the village records available concerning this area of land prior to the year 1874. A certified copy of an extract from the khasra of 1874 was, however, filed by the plaintiffs and one Mr. Goutier is recorded in that document in the tenants column as an occupancy tenant of 30 years standing.
(3.) An extract from the khatauni of 1876 was also filed by the plaintiffs, but as that document was incomplete, we, with the consent of the appellants counsel, permitted the counsel for the respondents to produce a certified copy of the khatauni with respect to all the plots in dispute. The respondents counsel has accordingly filed today a copy of the jamabandi of 1876 with respect to all the plots in dispute. It appears from this document that the area in dispute was described in the village papers as "ahata godam Goutier Saheb." The area of the ahata is shown in the jamabandi to be 26 bighas 2 biswas 16 dhurs. Out of this area an area of about 5 bighas was under cultivation in 1876 and the rest was parti land. As against the area under cultivation the names of certain shikmi tenants were entered in the jamabandi and the rent payable with respect to the same was entered as Rs. 16-7-6. The parti plots were also specified in the jamabandi and the area of the same was entered as 20 bighas 17 biswas odd and the rent payable with respect to that area was shown as Rs. 63-14-3. The rent on account of the cultivated and the parti area was then totalled together and was shown as Rs. 80-5-9. There is a note in the remark column of the jamabandi that the "wasuli" is Rs. 88-2-0.