RAM DHAN Vs. PRAYAG NARAIN

JUDGEMENT

(1.) This appeal arises in a suit for possession of a village called Itaura in the district of Agra and for mesne profits. This village originally belonged to one Rao Joti Prasad, who was a man of great affluence in the district of Agra and owned considerable property. Rao Joti Prasad in his life-time caused the name of his son Bishambhar Nath to be entered in the revenue papers in respect of the village of Itaura in 1866. In the year 1869 he executed a deed of gift of the property in favour of Bishambhar Nath Rao Joti Prasad died in 1870 and after his death some disputes arose between Bishambbar Nath and his brother Amar Nath, the two surviving eons of Rao Joti Prasad. These disputes led to the execution of documents, to reference to arbitration, and finally in the year 1881 Bishambhar Nath was recognized as the owner of this village and his name continued to be recorded as such. In 1882 he made a mortgage of the village in question as well as of other property in favour of the Maharaja of Bharatpur. The Maharaja obtained a decree on the basis of the mortgage on the 7 of January, 1886, against Kannu Dei, the widow of Bishambhar Nath, who had in the mean time died. This decree ordered the sale of all the mortgaged properties, one of which was, as stated above, the village of Itaura. In execution of the decree the village was sold by auction on the 21 of August, 1905, and the present defendants became the purchasers and they have been in possession since the date of their purchase. After the lapse of nearly twelve years from the date of their purchase, that is, on the 26 of May, 1917, the present suit was instituted to oust them from the property of which they have been in possession for this length of time. The plaintiffs allege that Rao Joti Prasad, on the 13 of July, 1863, made an endowment of the village for the maintenance of sadabart for the support of the poor and the indigent, that the property is thus endowed property, and that it could not be sold in execution of a decree under a mortgage made by Bishambhar Nath The plaintiffs claim to be trustees of the endowed property under an appointment made in that behalf by the District Judge of Agra.

(2.) In the court below the genuineness of the document of the 13 of July, 1863, which was registered on the 11 of August of that year, was disputed, but the learned Subordinate Judge found that the document was genuine and there is no controversy before us on that point. The argument before us has proceeded on the assumption that the document was executed by Rao Joti Prasad on the date mentioned in it.

(3.) The learned Subordinate Judge was of opinion that the document only indicated an intention to make an endowment and did not in fact create an endowment and holding that the property continued in the ownership and possession of Rao Joti Prasad and his son Bishambhar Nath, dismissed the plaintiffs suit.