CHETHRU SINGH Vs. BABUJI ISSAR

JUDGEMENT

(1.) The appellants are the defendants first-party. The suit was by the landlords to recover possession of a kaimi raiyati occupancy holding measuring 4 bighas 9 kathas and 12 dhurs of which the raiyats were the defendants second-party who had transferred on 29 September 1916 to the defendants first-party in spite of the fact that there was no custom of transferability without the sanction of the landlord which had not been secured.

(2.) The defence was that the holding which had been carved out of khata No. 137 by partition, consisted not only of the four naqdi plots Nos. 920, 986, 1080 and 1081 which made up the said 4 bighas 9 khatas and 12 dhurs, but also of plots 181 and 187, the former being a banswari extending to 1 khata 3 dhurs and shown in the Record-of-Rights as six bambo kothis in possession of the raiyat and as bhaoli nifs, and the latter being recorded as makan mai sahan and belagan. The learned Munsif held that the defendants were purchasers of a part of the holding only and accordingly the landlord could not recover possession. He went on to hold that though Raghunandan, brother of Harbans, one of the members of the defendants first-party, was a necessary party to the suit, the suit could not be thrown out on that ground.

(3.) In appeal the learned District Judge referring to the decision in Ramji Prasad V/s. Mohammad Anwar Ali Khan AIR 1917 Pat 142, held with regard to plot No. 187 that a belagan plot is not to be considered as part and parcel of a holding for which a naqdi rent is assessed and therefore plot No. 187 did not form part and parcel of the holding purchased by the defendants first-party. As regards plot No. 181, referring to the case of Dip Narain Singh V/s. Bhim Mandal AIR 1927 Pat 207, he seems to have held that, as the plaintiffs stated, the naqdi lands left over constituted a separate holding and therefore the original survey entry was immaterial, relying upon an ex parte rent suit of 1924 and subsequent rent sale proclamation which described the area as 4 bighas 9 kathas and 12 dhurs as showing that the holding came to be one of 4 bighas 9 kathas 12 dhurs, that is to say, it was made up of the plots recorded as naqdi in the original survey khatian.