AMJAD KHAN Vs. SHAFIUDDIN KHAN

JUDGEMENT

(1.) The dispute in this appeal relates to a house situated in the town of Ferozabad. The plaintiffs claim to be the owners of the site occupied by that house and allege that Mt. Khairatan and Hasan Amjad Khan, who were occupying that house have been wrongfully denying the title of the plaintiff's to the land in question. They seek the ejectment of the said occupants and implead certain other persons whom they describe as having been once in possession as - the heirs of Nur Khan, the original ryot.

(2.) According to the plaintiffs the land in question belonged to Azimuddin Khan by virtue of a purchase made from Rahim Ali on the 4 of December 1859 and Nur Khan had built a house thereon with the permission of his predecessor-in-title. It was also stated that after the death of Nur Khan two of his sons, Kale Khan and Sardar Khan, executed an agreement on the 3 of July 1865, by which they agreed to pay a ground rent of one anna per mensem and to vacate the land in case default was made in payment thereof.

(3.) It appears that Nur Khan died, leaving three sons, Kale Khan, Sardar Khan and Munir Khan and a daughter named Mt. Khairatan. According to the plaintiffs the heirs of Kale Khan and Sardar Khan, namely Mb. Mariam Bibi, Mt.. Mammau and Hamid Khan, had left the" house long ago and gone to live in another house in the town and Munir Khan, had similarly left the house 15 or IS years ago and had gone to live elsewhere. The defendants, Mt. Khairatan and Amjad Khan, who are in occupation of the house deny the plaintiff's title to the land occupied by the house in dispute and plead that they have been in adverse possession of the same. They also deny the genuineness of the lease purporting to have been executed by Kale Khan and Sardar Khan on which the plaintiffs relied in support of their claim. The lease did not specify the boundaries or number of the land to which it related and no attempt was made by any of the Courts below to find out whether it related to the land, occupied by the house of Nur Khan, which was referred to in the sale-deed of the 4 December 1859 executed by Rahim Ali in favour of Azimuddin Khan. The trial Court refers to an admission said to have been made by Amjad Khan that he and his mother or Nur Khan had no other house in the town except the one in question. But while the Court of first instance held that the Sarkhat of the 3 of July 1865 executed by Kale Khan and Sardar Khan was not binding on the other defendants, the lower Appellate Court thought that it had been presumably executed by Kale Khan and Sardar Khan on behalf of the entire family and was binding on the other defendants also. Both the Courts below eventually agreed in passing a decree in favour of the plaintiffs for the ejectment of the defendants on the ground that they denied the title of the plaintiffs to the land in question and were liable to be evicted whether they occupied the sama as licensees or tenants.