MOHUNT KRISHEN DOYAL GIR Vs. IRSHAD ALI KHAN

JUDGEMENT

(1.) This suit was instituted by Mohunt Krishna Doyal Gir against Irshad Ali Khan and Ali Nabi, and by the plaint a declaration is sought that the plaintiff is owner of 13 annas of Haria asli mai dakhili, Pargana Shergati under kobalas dated the 21st February 1888 and 21st February 1889, and under an ijara of 12th March 1889 and a Kobala of the 25th July 1904 is owner of 1 anna 6 dams and 5 cowris and ijaradar of 1 anna 13 dams 15 cowris. In other words, he seeks to establish his present right to 16 annas in one capacity or the other and on the strength of this he prays that his possession of the 16 annas may be confirmed or restored to him. This suit was heard by the Subordinate Judge, first Court, Gaya, by whom it was dismissed. The appeal was heard by N. Chatterjea and Walmsley, JJ., who agreed so far that they passed a decree in the plaintiff s favour to the extent of the 1 anna 6 dams 5 cowris. But as to the rest they were at variance, for while Chatterjea, J., was for decreeing the plaintiff s claim in its entirety, Walmsley, J., was for disallowing therest of his claim. A decree was accordingly drawn up and signed in accordance with the view of Walmsley, J. The plaintiff has appealed from so much of the decree as is not in accordance with the concurrent judgments of both the learned Judges. Certain preliminary objections were overruled and we have heard the case on the merits.

(2.) In Pargana Shergati, Zilla Gaya, there is a taluka named Khaira which belonged in equal shares to Nabi Bukhsh Khan and Mohammed Bukhsh Khan.

(3.) On the death of Nabi Bukhsh his 8 annas admittedly devolved or was treated as having devolved as to 5 annas on his daughter Hussaini Bibi and as to 3 annas on Mohammed Bukhsh and his children. It is common ground that the 8 annas of Mohammed in certain villages forming a part of Taluka Khaira passed to the plaintiff under the sale-deed of the 21st February 1888, that the 5 annas of Hussaini so passed under the sale-deed of the 21st February 1889, and that the remaining 3 annas passed for a limited interest under the iiara of the 12th March 1889. The plaintiff maintains that among the villages that so passed to him was Harya Manar. This the defendant Irshad Ali Khan contests, and this dispute is the question involved in this litigation. Irshad Ali Khan claims to be the owner of Haria Manar by virtue of a revenue sale to the defendant Ali Nabi as his benamdar, and it is not disputed that he acquired this property unless the plaintiff is able to make good his claim that the property was assured to him and that it was included in the separate account opened in the name of his benamdar, Bishendhari.