MAHENDRA MISRA Vs. KEDAR PANDE

JUDGEMENT

(1.) BIDYA Misra, who was the first defendant in this suit, was in possession of a fixed-rate holding and an occupancy-holding. He presented an application to the Revenue Court, stating that the second defendant, his daughter, and the plaintiff, her son, were in joint possession of the holding with him and praying that their names might be entered in the record along with his. The defendants Nos. 3 to 5, who are collateral relatives of BIDYA. Misra, put in objections with the result that a compromise was arrived at between BIDYA Misra, his daughter and the defendants Nos. 3 to 5. In the petition presented to the Revenue Court setting out the compromise, it is stated that the defendants Nos. 3 to 5 are in joint possession with BIDYA Misra and not the plaintiff, and that the plaintiff and the second defendant are not in joint possession with him. Two months later, the present suit was instituted for a declaration that the plaintiff is the daughter s son of BIDYA Misra and that the deed of compromise, so far as it affects the plaintiff, might, as against him, be declared null and void and inoperative.

(2.) THE Courts below have made a declaration as prayed. In second appeal it is contended that the suit is not maintainable. THE deed of compromise does not challenge the legitimacy of the second defendant or of the plaintiff and it seems to me that at the date of the institution of the suit, the plaintiff had no cause of action for a mere declaration that he is the daughter s son of Bidya Misra. If the property of Bidya Misra had consisted only of the fixed rate holding, I should have held that the plaintiff is not entitled to any declaration in respect of the deed of compromise, because the plaintiff, as the daughter s son of Bidya Misra, had at the date of the suit no right whatever to the fixed-rate holding. He was not, as has been suggested here, in the position of a presumptive reversioner. Bidya Misra was the full owner of the holding and the plaintiff had no right whatever as regards the fixed-rate holding. But as regards the occupancy-holding, the position is somewhat different. Section 22 of the Tenancy Act provides that in default of male lineal descendants and certain others, an occupancy-holding shall devolve on the daughter s son and failing such daughter s son, on the nearest collateral male relative in the male line of descent: provided that no such daughter s son or collateral relative shall be entitled to inherit, who did not share in the cultivation of the holding at the time of the deceased s death THE plaintiff s case is that he was joint in possession and cultivation of the holding with Bidya Misra. THE case of the defendants Nos. 3 to 5 was that they were joint in possession and cultivation of that holding. THE whole object of the persons, who brought about the compromise, was to bring into existence evidence that the defendants Nos. 3 to 5 were joint in cultivation of the holding and would, therefore, be entitled to succeed to the holding to the exclusion of the daughter s son. THE case is of a novel description but it appears to me that a daughter s son or the nearest collateral male relative, who is sharing in the cultivation of an occupancy-holding with the recorded tenant of the holding, is a person, entitled to a legal character within the meaning of Section 42 of the Specific Relief Act, and that the dispute between the plaintiff and defendants Nos. 3 to 5 is a fit subject for adjudication under that section. THE position of the plaintiff is analogous to that of an ordinary presumptive reversioner. THE plaintiff alleged in his plaint that he was in. joint possession with Bidya Misra and that his possession had been denied by the defendants, On proof of his allegations, he might, I think, be given a declaration that he was the daughter s son in joint possession with Bidya Misra and is not bound by the compromise. Although this question of joint possession or cultivation was of supreme importance, no issue was fixed with reference to it and the consequence is that there is no finding as to whether he shared in cultivation with Bidya Misra. THE plaintiff has not definitely asked for a declaration that he shared in the cultivation of the holding but I think that regard being had to the pleadings of the parties, a declaration to that effect may be given to him, if he proves his allegations. I have omitted to mention that Bidya Misra died while the case was pending in the Court of first instance and before any evidence was recorded. It was suggested by the defendants that in the life-time of Bidya Misra, no suit would lie. To this the plaintiff replied that as the suit was tried out without any objection after the death of Bidya Misra, it might be treated as though the suit had been brought after the death of Bidya Misra. I am not prepared to hold this. But I think the suit was maintainable in the life-time of Bidya Misra and a fortiori the suit was maintainable after his death. Let the record be returned to the lower Appellate Court for a finding on the issue whether the plaintiff and his mother were joint in cultivation of the occupancy-holding with Bidya Misra. Further evidence may be admitted. On return of the finding, ten days will be allowed for objections.