RAM JATAN TIWARI Vs. RADHA KISHUN TIWARI

JUDGEMENT

(1.) This appeal arises out of a suit for the redemption of a usufructuary mortgage of one plot (No. 128) of his occupancy tenancy executed in 1880 by one Bakhauri.

(2.) It is admitted that Bakhauri's occupancy holding consisted of 6 plots and that he died about 25 years ago. It is further admitted that the appellants are in possession of the five other plots of the holding, but that the plots in suit are held by the defendants as mortgagees.

(3.) The appellants ease is that they are the heirs of Bakhauri and as such entitled to redeem this mortgage. The main defence raised was that the appellants were not the heirs of Bakhauri; the first Court found in the plaintiffs favour, but the lower appellate Court dismissed their suit finding that though they were the collaterals of Bakhauri, they were not his heirs within the meaning of Section 22 of the Tenancy Act as they were not proved to have been joint with him in the cultivation of the holding at the time of his death.