MOHAN SINGH Vs. MUHAMMAD MUMTAZ ALI KHAN

JUDGEMENT

(1.) The appellant in these two appeals which have been consolidated was the defendant in a separate suit brought by each plaintiff (respondent) for a declaration to the effect that he was an Tinder-proprietor of certain land situated in the village of Badhia Farid. This village forms part of the estate called the Bilaspur estate in the Gorida district of Oudh. The Munsif's Court granted to each plaintiff a declaratory decree in terms of the plaintiffs prayer; these decrees were affirmed in appeal and the defendant obtained special leave to appeal to His Majesty in Council. There is no distinction between the two cases so far as the points in controversy are concerned and they may, therefore, be treated as one.

(2.) There has, unfortunately, been a considerable amount of litigation between the defendant and the plaintiffs who have the rise or occupation of the land described. As far back as the year 1891 the defendant issued notices of ejectment under Secs.54 and 55 of the Oudh Rent Act, 1886 (Act XXII of 1886), against the two plaintiffs or their predecessors in the title. They thereupon instituted proceedings under Section 108(8) of this Act to contest the said notices on the ground that they were not tenants liable to ejection by notice under the A?t but were under-proprietors thereunder. In these proceedings, final judgment was pronounced on the 17 of March, 1893, by the Board of Revenue in N.W.P. and Oudh. The operative part of the judgment was that the notice of ejectment issued by the defendant be cancelled and the objections of the plaintiffs be allowed. The ground of the decision, to put it shortly, was that, when in answer to a notice of ejectment an occupier pleads that he has an under-proprietary right in his holding, it is sufficient for him to satisfy the Board of Revenue that there is reasonable ground for presuming that he is not an ordinary statutory tenant under the Rent Act in order to obtain cancellation of the notice.

(3.) It is plain, from the considered judgment of the Board of Revenue that they were of opinion that a prima facie case had been made out by the plaintiffs. The judgment was based on previous proceedings which had taken place between the defendant and certain persons in occupation of the land in question in whose right the present plaintiffs now are. In 1871 these persons had claimed in the Settlement Courts sub-settlement of the village. Their claim was rejected, but in rejecting it the Settlement Court of first instance gave them a proprietary decree in respect of "sir." This decree was appealed to the Commissioner's Court by which the decree was wholly set aside; not, however, on the merits of the title to settlement or to "sir" but on a. technical ground. The case was sent back for trial, but prosecution of it was dropped by the parties and no decision in favour of either was passed, but the fact that the Settlement Court of first instance had pronounced a decree in favour of the plaintiffs was held sufficient justification for cancelling the notice of ejectment, leaving the parties to constitute their claims, if they so desired, in the proper Civil Court.