ANTU RAI Vs. RAM KINKAR RAI

JUDGEMENT

(1.) This is a defendants first appeal against a decree for possession passed by the learned Subordinate Judge of Ghazipur. The plaintiff's in the suit claimed possession of certain properties specified in Schedule A of the plaint and that claim was substantially decreed; hence the present appeal. The plaintiffs claimed the properties as being the reversioners of one Gopal Rai, deceased who died whilst still a minor on 14 December 1918. At the date of his death the plaintiffs alleged that their father Sheo Tahal Rai was the nearest heir and was thus entitled to the estate by right of inheritance. Sheo Tahal Rai however admittedly died some time after Gopal Rai, and the plaintiffs as his only sons now claim that they are entitled to the property as representing their father. After much litigation in the revenue Courts the defendants obtained mutation of their names in the revenue papers; hence the plaintiffs were compelled to bring this suit for possession of the properties. The defendants case was that the plaintiffs were not the nearest heirs of Gopal Rai but, on the contrary, that they were only very distantly related to the deceased. They allege that they are the nearest heirs and are therefore entitled to Gopal Rai's property by right of inheritance. In answer to these contentions of the defendants the plaintiffs replied that the defendants were in any event estopped from setting up that they were the nearest heirs of Gopal Rai, deceased, and further that the issue as to who were the nearest heirs of Gopal Rai, deceased, had already been decided against the defendants and in favour of the plaintiffs and that the matter was therefore res judicata. A number of other subsidiary issues were raised in the case, but it is not necessary to refer to them in this judgment as the points have not been pressed by one side or the other in this appeal.

(2.) The plaintiffs, as stated previously, are the only sons of Sheo Tahal Rai. They filed a pedigree with the plaint, and from this pedigree it will be seen that Sheo Tahal Rai was the son of Harpal Rai who was the son of Jhakri Rai who was in turn the son of Nihal Rai who was the son of Bisraon Rai. According to the plaintiffs pedigree Gopal Rai was the only surviving son of Ram Charittar Rai who was the son of Shubh Karan Rai who was the son of Algu Rai who was the son of Bechu Rai who was the son of Gendu Rai who was in turn the son of Bisraon Rai. It will be seen therefore that the plaintiffs allege that they are the direct descendants of Nihal Rai and that Gopal Rai was a direct descendant of Gendu Rai. According to the pedigree Nihal Rai and Gendu Rai were real brothers and were the only sons of Bisraon Rai. It is conceded by the defendants that if the plaintiff's pedigree be true the latter are the nearest heirs and reversioners of Gopal Rai deceased, but they allege that Gendu Rai was not a son of Bisraon Rai but the son of one Dammal Rai who was a member of an entirely different branch of the family.

(3.) The defendants also filed a pedigree with their written statements and from that pedigree it will be seen that defendant 1, viz. Jadik Rai, is the son of one Gajadhar who was a direct descendant of one Manorath who was the son of Pahalwan Rai and grandson of Jagrup Rai. Defendant 2 is the son of Dwarka who was a direct descendant of Kanhaiya Rai, a brother of Manorath and a son of Pahalwan Rai and a grandson of Jagrup Rai. Defendant 3 is the son of Nandan who was a direct descendant of Manorath to whom we have previously referred. Defendant 4 is the son of Chandar and was also a direct descendant of Kanhaiya Rai, the brother of Manorath. Defendant 5 has been impleaded because he is the mortgagee of a part of the property under a mortgage executed by defendant 3.