LALLA BABU Vs. LAL BAHADUR

JUDGEMENT

(1.) This appeal concerns itself only with the question, viz., what is the property that is going to be sold?

(2.) Certain persons being members of a joint Hindu family with the appellants mortgaged their property described in the plaint as mauza Muhammadpur Bayar, pargana Budaun, comprising a 15 biswas share entered in the khewat as holding No. 1, bearing a jama of Rs. 931-6-6. Certain issues arose between the parties and one of the questions raised was whether the mortgagors had any interest in the property which was not liable to be sold. The nature of that interest claimed as unsaleable, will be considered presently. A second appeal was heard by this Court and after an amendment of the decree appealed against, the appeal was remanded for disposal of the issue which is now to be finally disposed of by this Court.

(3.) It appears from the judgment of the lower Appellate Court, that is to say, the judgment under appeal, that the ancestors of the mortgagors were originally assignees of the Government revenue in respect of the two villages, viz., Mahammadpur Bayar and Lakhanpur. The learned Judge found that whatever might be true history of the grant, "undoubtedly these two villages had been held by the ancestors of the appellants as assignees of the revenues during the Moghul times and originally the history of Lakhanpur and that of Muhammadpur Bayar was identical." The learned Judge found, in respect of Lakhanpur, that there were zamindara with whom the settlement was made by the Government, and that the appellants had been realising the land revenue from the zamindars of Lakhanpur as assignees of the same. With respect to Muhammadpur, the learned Judge finds that there were certain persons with whom the Moghuls and the early British officers made settlements, but later on when regular Settlements came to be made these persons disappeared and the settlement was made with the assignees of Government revenue themselves. The result was, finds the Judge, that for the last half a century or more the appellants have been treated as the proprietors of the village paying the land revenue to themselves. On these facts, the lower Appellate Court remarked as follows : "Thus the corpus of village of Muhammadpur Bayar passed into the possession, of the muafidar. Act XXIII of 1871, on which the present appellants place reliance, does not refer to immovable property but only to grants of revenue and money." The learned Judge, accordingly, held that the property mortgaged was saleable.