BHAIA SHEORAJ SINGH Vs. SAMPAT SINGH

JUDGEMENT

(1.) THE plaintiff appellant brought the suit out of which this appeal has arisen for a declaration of his title to a one-anna share of zemindari which under partition has now been declared to be a sixteen-anna mahal and a house This property stood recorded in the names of Musammat Marjodi and Sri Govind Singh and the mahal was formed in the name of Sri Govind Singh. THE plaintiff is one of the two grandsons of Raghubans Singh, who was one of the sons of Asman Singh. It is common ground that after the death of Asman Singh a partition took place, between his sons, of the four-annas share which belonged. to him. THE plaintiff states that he and his brother Ram Jewan Singh were joint with their father, that Ram Jewan Singh predeceased his father so that the whole property which belonged to the father passed to the plaintiff alone by right of survivorship, that he caused the name of Musammat Marjodi, the widow of Ram Jewan Singh, to be entered in the revenue papers, for her consolation that she had a daughter Musammat Sukhraji whose son was Sri Govind Singh, that Sri Govind Singh s name was entered nominally in respect of the property in question, that the plaintiff was in fact in possession and that he was solely in possession. He states that Musammat Marjodi died some three years before the institution of the suit, that Sri Govind Singh was a born leper and was, therefore, not entitled to inherit, that she had no title in respect of the property and that he had no power to mortgage it to the second defendant as he did and that the mortgage is ineffectual as against the plaintiff. THE plaintiff thus bases his claim on two grounds, first, that he was originally the owner of the property and, secondly, that even if Marjodi became the owner, upon her death, it could not pass to her daughter s son by reason of his being a born leper and that he is entitled to the property, In the alternative, the plaintiff claims a decree for possession. THE Court of first instance decreed the claim finding on the merits that Ram Jewan Singh predeceased his father, that the property belonged to the plaintiff and that Marjodi s name was entered merely for consolation. Upon appeal, the learned Judge did not consider the case on its merits. He was of opinion that as a partition took place in 1894, tinder which the property in dispute was formed into a mahal in the name of Sri Govind Singh, the present suit was not maintainable. He does not state under what ground the suit is not maintainable but he apparently refers to the provisions of Section 233, Clause (k). In my judgment, having regard to the circumstances of this case, that clause has no application. THE suit is not one with respect to the partition or union of mahals. THE plaintiff has not questioned the correctness or validity of the partition. What he asserts is that he is the person who is the owner of the mahal which was formed under the partition and that the person in whose name the mahal was formed, viz., Sri Govind Singh, was only benamidar for him. If the defendant s case is true that Ram Jewan survived his father and was separate from his brother, Musammat Marjodi, his widow, was the person entitled to his estate daring her life-time. She died only three years ago. THErefore at the time of partition, she was the person entitled to the mahal which was formed by partition. Sri Govind Singh s name was clearly entered as a nominal transaction and as benamidar either for Musammat Marjodi or for the plaintiff. It is true that the plaintiff raised no objection at the time of partition but he alleges, as I have already said, that the person in whose name the mahal was formed was only a benamidar. THE suit in no way affects the partition. It only raises the question whether the property which was partitioned (and according to the plaintiff was rightly partitioned) belongs to him or belongs to the defendants. THE case, in my opinion, is not one to which Section 111 of the Land Revenue Act could have applied and it is not barred under the provisions of Section 233, Clause (k) of Act III of 1901. THE case, in my opinion, ought to have been tried on the merits. I accordingly allow the appeal, set aside the decree of the Court below and remand the case to that Court under Order XLI, Rule 23 of the Code of Civil Procedure, with directions to re-admit it under its original number in the register and to dispose of it on the merits. Costs here and hitherto will follow the event.