BHAGWANT Vs. MARE

JUDGEMENT

(1.) This appeal has arisen under the following circumstances:--The plaintiff brought the suit for actual possession of plots Nos. 393, 394 and 166-I against the defendants under the following circumstances. The plaintiff owned several plots of sir land. He sold some of those to one Umrao. The defendant, Mare, obtained those plots by pre-emption. It is now admitted before me that the plots sold were plots in dispute. The plaintiff now says that the defendants were his sub-tenants of plots in suit and the plaintiff got a decree against them for ejectment and obtained possession through the Court Amin on the 17 of February 1919, but that when the dakhalnama was being executed the defendants, somehow or other, got it recorded therein that there were some crops of theirs standing on the plots; that he, the plaintiff, was the ex-proprietary tenant of the land in suit and sometime ago Mare, defendant, got the thumb impression of the plaintiff on a piece of paper and now says that it is a deed of relinquishment of the plaintiff's sir rights; that notwithstanding the delivery of possession through the Court Amin on the 17 of February 1919, in execution of the decree, for ejectment passed by this Court, the defendants are interfering with the lawful possession of the plaintiff; hence this suit for actual possession. The defence of Mare, defendant, was that the plaintiff has no ex-proprietary rights in the land, that the plaintiff had relinquished his ex- proprietary rights, and that the contesting defendant was cultivating the land in dispute as owner and not as subtenant. He further alleges that the relation of landlord and tenant does not exist "between the parties.

(2.) The First Court came to the conclusion that the plaintiff's ex-proprietary rights were in existence as to plot No. 160-1 but they were extinguished in respect of plots Nos. 393 and 394 because of relinquishment by the plaintiff. It held farther that the relationship of landlord and tenant was admitted between the parties, that the relinquishment took place on the 4 of February 1918, and as this suit was not brought till the 13 of August 1919, it was barred by time and that the delivery of possession to the plaintiff on the 17 of February 1919 was ineffectual because his rights as an ex-proprietary tenant had ceased to exist on that date. It, therefore, decreed the claim as to plot No. 166-1 and dismissed it as to plots Nos. 393 and 394. The plaintiff went up in appeal and the learned District Judge, came to the conclusion that, as the plaintiff's name had been struck out of the revenue papers, his suit was bound to fail. He, therefore, dismissed the appeal. The plaintiff comes here in second appeal.

(3.) By my order dated the 12 of July 1922 I referred the following issue to the Court below for trial as it was the point on which the decision of the case hinged, namely, "Did the plaintiff-appellant execute the deed of relinquishment dated the 4 of February 1918, of his ex-proprietary right of his own free-will or was it obtained by Mare, defendant, from the plaintiff by exercise of fraud?