RAM DIN Vs. HAR DAYAL

JUDGEMENT

(1.) The facts of the suit out of which this appeal arises are these.--Har Dayal cultivates one bigha of land on a Rs. 10 rent in Allapur village in Budaun District. In 1920 Ram Din, zemindar of the village, sued Har Dayal for two years rent and interest in the Court of an Assistant Collector of the Second Class. Ram Din asserted that he was the zamindar of the plot and that the plot was his sir and that Har Dayal was his sub-tenant. Har Dayal denied this. The Assistant Collector, Second Class, found that the land in question was the sir of Ram Din which Har Dayal cultivated as his sub-tenant on a rent of Rs. 10 a year, and decreed the suit accordingly. That decision became final.

(2.) The suit out of which this present appeal arises had apparently been filed before the suit for arrears of rent. It was filed on the 29 September 1919. In this, Ram Din and two women called Reoti and Chameli sued Har Dayal in the Court of an Assistant Collector, First Class, for the ejectment of Har Dayal from the same plot in respect of which the suit was brought for arrears of rent. Har Dayal set up a plea that he was the zemindar of the plot and that the plot was his khudkasht. It is not true that he was the zemindar. His family had been zemindars in the village but had lost their proprietary rights long before 1919. On the 30th June 1920 the Assistant Collector, First Class, decided, some two months after the arrears of rent suit had been decided, that the plaintiffs were zemindars, that the land in question was their sir and that Har Dayal was a sub-tenant. Har Dayal again asserting that the land was his khudkasht appealed to the District Judge who allowed his appeal. The District Judge found on the facts that the land in question was not the plaintiffs sir , that Har Dayal and his predecessors cultivated the land in question for more than 50 consecutive years and that Har Dayal had ex- proprietary rights therein. He, therefore, dismissed the suit.

(3.) The present appeal is preferred upon the following grounds;--That no appeal lay to the District Judge; that it was concluded by res judicata; that the land in question was the sir of the appellants, and that Har Dayal was sub-tenant that the Judge had made out a new case for Har Dayal which he did not set up for himself; and that the Judge could not legally decide the nature of Har Dayal's holding.