MAQBUL HUSAIN Vs. LALTA PRASAD

JUDGEMENT

(1.) THIS is an appeal from the decree of the Judicial Commissioner of Oudh of the 3rd of June, 1897, reversing the decree of the District Judge of Hardoi of the 26th of February, 1895, and restoring the decree of Subordinate Judge of Hardoi of the 20th of August, 1894, which dismissed the suit of the plaintiffs and present appellants. The respondent has not appeared, which their Lordships regret the more because it is stated to be a test case upon the decision of which 36 similar cases will depend. It is surprising that the 37 defendants did not combine to instruct counsel to argue their case at their Lordship's Bar.

(2.) THE appellants are the heirs of the original plaintiff Chaudhri Abdul Baki who by his plaint claimed to be entitled to the land or soil occupied by a bazar called Amaniganj in the town of Saudila in Oudh as his ancestral property. It was alleged that the residents of the said bazar live there as ryots, having built houses at their own costs, and that the defendant was one of such residents is occupation of two shops and having without permission built another shop on a piece of fallow. The plaint contains an allegation of a custom in the town of Sandila that if a ryot leaves of his own accord a house or shop occupied by him the materials thereof become the property of the zamindar. If he wishes to sell the materials of a house or shop he pays one-fourth of the price to the zamindar and if the zamindar desires the ryot to vacate a house or shop he pays the ryot three-fourths of its estimated price. The prayer is for possession of the laud occupied by the defendant subject to the payment of three-fourths of the price of the defendant's shops (other than the one erected without permission) according to the custom.

(3.) AFTER the mutiny the town of Sandila shared the general confiscation of Oudh territory. Other family property was restored to the plaintiff, but in 1860 the bazar was entered in the Nazul Register under the belief (which appears to have been mistaken) that it was previously the property of the King of Oudh. In the year 1877 the Government determined to impose the payment of a ground rent upon the occupiers. The occupiers refused to pay, apparently on the ground that they were not liable by their tenure to pay rent, and the Tahsildar was ordered to institute a test action. Before anything was done, however, an inquiry was directed to be made as to when and by whom the shops were built, how did they become a nazul property, and what proof there was of their being such. On the 3rd of September, 1877 Abdul Baki (the plaintiff) petitioned the Government "that an executive inquiry be made through the Tahsildar or some other officer, and if the bazar be found" to be the petitioner's property an order for its release be "passed," and an inquiry was directed accordingly.