UMRAO SINGH Vs. PIRTHI

JUDGEMENT

(1.) The facts of this case are father complicated, but they appear to be as follows. The pedigree given in the judgment of the learned District Judge dated the 18th May, 1921, should be referred to, to understand the relationship which exists between the parties. There were three brothers, ignoring the fourth who does not count, viz., Sheo Singh, Khubi and Sobha. Sobha's son was Bawar and his wife was Mt. Dhapo. Khubi's son was Nihal. Sheo Singh's sons were Nanak and Fatte. We hear nothing as to what happened to Nanak and he was seen left out of account. Fatte's sons are the defendants. They are also the appellants in this Court. Bawar died about 50 years ago and on his death his widow married his cousin Nihal. The plaintiffs-respondents ate the sons of Mt. Dhapo and Nihal. Bawar left no issue. The plaintiffs brought the suit, out of which this appeal has arisen for the ejectment of the appellants on the ground that the plots in suit were the Sir lands of Mt. Dhapo, their mother, and the appellants were their tenants. The defence was that the defendants were also co-sharers in the village and they were not holding as tenants of Mt. Dhapo. The Court of first instance found that the defendants appellants had brought a suit in Civil Court against Mt. Dhapo, for a declaration of their title as sir-holders when Mt. Dhapo had brought a suit in the Revenue Court for their ejectment. Indeed, the suit of the appellants against Mt. Dhapo arose out of the ejectment suit instituted by Mt. Dhapo. In that suit it was held that Mt. Dhapo was the sir-holder and she alone had the right to the possession of the lands in suit. Relying mainly on this judgment, and also on the circumstance that, the mutation orders on Dhapo's death were made in favour of the plaintiffs, who are after all the sons of Mt. Dhapo, the Court of first instance, the learned Assistant Collector, decreed the suit. There was an appeal to the District Judge. Nobody questioned the jurisdiction of that officer, because, undoubtedly a question of proprietary title was in issue. The learned District Judge came to the conclusion that the plaintiff-respondents as heirs of Mt. Dhapo were entitled to eject the defendants. He accordingly dismissed the appeal.

(2.) In the Court, evidently, an entirely new case was set up and it was this. Mt. Dhapo was the widow of Bawar and was in possession in that capacity. The parties to the suit were the reversioners to the estate of Bawar, that the plaintiffs alone were not entitled to the entire holding and that they were not, therefore, entitled to eject the appellants who were co-sharers. The learned Judge of this Court before whom the second appeal came thought an enquiry should be made on this point and he remanded the following issue for decision. The learned Judge did not write any judgment regarding his grounds for remanding the issue. But it is clear from grounds taken up in second appeal and from his order that he entertained the plea that if Mt. Dhapo was holding the property on behalf of her first husband Bawar, the parties would be entitled only as revorsioners and the plaintiffs would have no special title to the property as the sons of Mt. Dhapo.

(3.) The issue that was remanded was this: Was Mt. Dhapo in possession of the plots in dispute as the widow of Bawar, or was she in possession of these plots adversely to the heirs of Bawar aforesaid in case her right to possession "came to an end on her re-marriage, and if so, how long did such possession continue?"