ROSHAN LAL Vs. BABU LAL ALIAS BABU BAM

JUDGEMENT

(1.) This is an appeal by the defendant Roshan Lal. The suit of the plaintiff was dismissed by the trial Court but it was decreed by the lower appellate Court and hence the defendant, has made this second appeal. The lower appellate Court set aside the decree of the trial Court, decreed the plaintiff's claim for possession and for recovery of Rs. 87-8-0 as mesne profits. The facts giving rise to the present litigation might be briefly stated: It appears that one Bhopal was the occupancy tenant of a certain holding. He died in December 1932. The patwari seven days after reported that Bhopal had died and one Roshan was his collateral and as Roshan had shared in cultivation with Bhopal, Roshan's name might be entered as an occupancy tenant in the revenue papers. The usual proclamation under Section 197, U. P. Land Revenue Act, was issued and two persons Mul Chand and Bhup Singh who were zamindars of the village objected to the entry of Roshan's name as an occupancy tenant. They contended that Bhopal died without leaving any heir and Roshan was neither the collateral of Bhopal nor did Roshan ever share in cultivation with Bhopal. They said that as zamindars the holding reverted to them. The Sub-Divisional Officer acceded to the report of the patwari and to the claim of Roshan. The zamindars appealed to the Collector and were unsuccessful. All this happened in 1933. Babu Lal, the present plaintiff, filed the present suit on 17th July 1937 in the Court of the Munsif of Hathras. He alleged that he was a minor when the earlier revenue proceedings took place, that he is one of the zamindars of the village along with his brothers Mul Chand and Bhup Singh, that these two latter colluded with Roshan and therefore the decision of the revenue Courts was vitiated and that that decision was in no way a bar to the institution of the present suit. Babu Lal then went on to say that Bhopal died without leaving any heir, that Roshan was not the collateral of Bhopal, that Roshan never shared in cultivation with him and that therefore Roshan was a rank trespasser and as he had been in possession of the property for some time past the plaintiff was entitled not only to dispossess Roshan Lal but to obtain mesne profits from him which the plaintiff valued at Rs. 87-8-0.

(2.) The defence of Roshan Lal was that the suit was not maintainable, that Roshan Lal was the tenant of the holding and that the present suit was barred by res judicata. The learned Munsif before whom the suit was filed remitted one issue to the revenue Court, viz., the issue on the question of Roshan Lal's tenancy. The revenue Court recorded a finding to the effect that Roshan Lal was not a collateral and had not shared in cultivation with him and could not therefore be considered to be the occupancy tenant of the plot, in dispute. The learned Munsif was bound to accept this finding and he, accepting it, proceeded to dispose of the other matters in controversy. He came to the conclusion that the suit was cognisable by the civil Court but in view of the earlier proceedings between Roshan Lal on the one hand and Mul Chand and Bhup Singh on the other the plaintiff who was after all the younger brother of Mul Chand and Bhup Singh could not reagitate the point and therefore the suit was not maintainable. In this view the suit was dismissed.

(3.) There was an appeal by the plaintiff and the learned civil Judge was of the opinion that the suit was maintainable, that the earlier revenue decision did not disentitle the plaintiff from maintaining the present suit and therefore the dismissal of the plaintiff's suit was not warranted by law. The finding of the revenue Court which was adverse to Roshan Lal was of course binding on the Munsif under Section 273, Agra Tenancy Act of 1926, but was not binding on the lower appellate Court. The learned Judge, therefore, went into that question and he was of the opinion that the evidence to prove the connation of Roshan with Bhopal was meagre and defective and this relationship was not proved. He also entertained grave doubt about Roshan Lal sharing in cultivation with Bhopal. He held that Babu Lal was entitled to Rs. 87-8-0 as mesne profits for the years in dispute and in the result the plaintiff's claim for possession over the disputed land and for recovery of Rs. 87-8-0 was decreed.