JITAN SINGH Vs. SECYOF STATE

JUDGEMENT

(1.) The appellant was plaintiff in a suit which he brought against the Secretary of State and the proprietors of a permanently settled estate known as Nizamat Khulpura Kamala. His allegation was that he had a holding of 31 bighas 10 kathas 6 dhurs at a rental of Rs. 64 besides cess in Nizamat Khulpura Kamala, tauzi No. 1860, but the tahsildar of the Khas Mahal estate had forced him to pay rent for 20 bighas odd on the ground that it formed part of a Government estate. He thus asked for a declaration that the entire area of 31 bighas 10 kathas and 6 dhurs held by him was in Khulpura Kamala in the patti of defendants 2 to 9; that the defendant first party had no right to realise any rent from him; that, at any rate, the latter could not receive more than Rs. 1-15-6 per bigha as rent from him, if for any reason it was held that the defendant first party was entitled to realise rent for a portion of his holding.

(2.) The plaintiff also claimed a refund of Rs. 189-9-3 besides interest on the ground that this amount had been realised from him in excess of the amount which he was in law liable to pay. The proprietors of Nizamat Khulpura Kamala who were defendants second party supported the plaintiff"s case and so it was contested by the defendant first party only. His main defence was as follows: During the pendency of the Revisional Survey proceedings it was found that some land had alluviated to the south of the Nizamat estate and so a proceeding under Act 9 of 1847 was started. In the meantime without the knowledge or consent of the Government, the proprietors of the Nizamat estate Khulpura Kamala got 20 bighas odd excess land entered in the survey papers in the name of the plaintiff. Ultimately the Government decided to take possession of the accreted area, but as it was found that the plaintiff's name stood recorded in the Record of Rights, the land was assessed with a rental of Rs. 41-15-9 besides cess which was accepted by the plaintiff. The plaintiff having thus admitted his tenancy under the defendant first party was estopped from denying the right of the defendants to realise rent from him. He was a mere non-occupancy raiyat of the land in suit and later on, between 1924 and 1926, the land having considerably improved the rent had been enhanced to Rs. 68-8-6.

(3.) The trial Court decreed the plaintiff s, suit; but this decree was modified by the learned District Judge in appeal. The latter held in favour of the plaintiff that he was an occupancy raiyat and that the rent was not liable to be enhanced except by suit. He was however of opinion that the Secretary of State was competent to take khas possession of the lands and that the plaintiff was thus a tenant under the defendant first party. As to the question of estoppel the learned District Judge held that the point was unimportant and there was nothing which would act as an estoppel to prevent the plaintiff from maintaining that his rent was Rs. 1-15-6 per bigha as alleged by him. The chief point argued, before us on behalf of the appellant in this appeal related to the question, whether the Government was entitled to take khas possession of the disputed area.