MAHADEO SARAN PANDE Vs. SHAIKH KHUDA BAKHSH

JUDGEMENT

(1.) This is an appeal by the plaintiffs who are aggrieved by the concurrent decisions of the Courts below by which they have dismissed their suit which was instituted on 5 March 1938, to recover possession of two plots bearing Nos. 841 and 842 appertaining to village Balua, tauzi No. 508. The plaintiffs case was that as a result of a collectorate partition, which started in 1929 and which was completed in 1935, they were allotted these two plots in their takhta and that they obtained delivery of possession in August 1932. But the defendants owing to ill- feeling and enmity during the Batwara proceedings constructed a house on these two plots for keeping husk, for using as cattle-shed and they have also constructed a well thereon and refuse to give up possession. The defence to the action was that these two plots were in possession of defendant 2 who had acquired them by a transfer from Abdul and Lachman, that they were in possession for a period longer than 12 years before the date of the partition and that the partition did not at all interfere with the rights of defendant 2 to remain in possession.

(2.) The learned Munsif held that the defendants acquired plot No. 841 from the original tenant Abdul by an exchange, but he disbelieved the story of the defendants about their having purchased plot No. 842 orally from the previous tenant Lachman. It should be observed here that one time these plots were homestead plots in possession of Lachman and Abdul as is clear from the record of rights which is to that effect. The learned Munsif then pointed out that no objection was taken on behalf of the defendants at the time of the partition when the Batwara Officer passed an order to treat the plots as being in the possession of the landlords as uncultivated land or as gairmazrua. The learned Munsif also found that the building and the well were constructed by the defendants between 1931 and 1983 during the pendency of the batwara proceedings. He rightly observed that the suit has arisen on account of the mistake of the parties to bring to the notice of the Batwara Officer that the building and well were constructed by the defendants and the failure of the Batwara Officer to consider this question. He, therefore, thought that the plaintiffs should be directed to move the Batwara Officer for the assessment of rent of plots Nos. 841 and 842, but as a civil Court he felt he could not interfere in the question of allotment and the assessment of rent could not be made by him. Accordingly he dismissed the plaintiffs suit.

(3.) Against this decision there was an appeal to the learned Subordinate Judge who confirmed the decision of the learned Munsif but with variation in some important particulars. The learned Subordinate Judge did not agree with the first finding of the trial Court and held that the story of the defendants that they purchased plot No. 842 was correct. The learned Subordinate Judge does not appear to have discussed the oral evidence of the defendants on whom the onus lay which was disbelieved by the trial Court. But he came to this conclusion on a consideration of the circumstances in the case. This finding of fact appears to be unsatisfactory. But however unsatisfactory, it is a finding of fact and cannot be successfully assailed in second appeal.