PIARE LAL Vs. SONEY LAL

JUDGEMENT

(1.) This is a second appeal-by the plaintiffs whose suit for possession-has been dismissed by the two lower Courts. The plaint set out that the plaintiffs are co- sharers of onehalf zamindari share and defendant 3 is the co-sharer of the other half-share and also the lambardar in a Mahal. That Debi Prasad was an occupancy tenant who died "about two years" before the plaint (dated 8 November 1927), leaving no issue, and his widow Mt. Champa Kunwar became occupancy tenant for her-life. That she died in July 1927 and as the holding was unclaimed plaintiffs and defendant 3 became entitled to get possession as zamindars. That Sone Lal, defendant 1, and Ganga Sahai, defendant 2, were collaterals of Debi Prasad who did not share in his cultivation, and that they entered into possession of his holding with the connivance of the lambardar defendant 3, who secretly received Rs. 200 as nazrana. That defendant 3 dishonestly instituted suit No. 156/56 of 1927 against Sone Lal, etc., in the revenue Court for possession and did not produce evidence and got the suit dismissed with a decree that defendants 1 and 2 had been joint in cultivation with Debi Prasad and were his collaterals and therefore succeeded his widow as occupancy tenants.

(2.) The plaint therefore asked for a declaration that this decree of the revenue Court, dated 7 October 1927, was without effect against the plaintiffs and that they should be put into possession and receive mesne profits. Ganga Sahai, defendant 2, died during the suit and his brother Sone Lal, defendant 1, pleaded that the civil Court had no jurisdiction, that the plaintiffs had full knowledge of the suit for ejectment in which there was no fraud or collusion and that the decree acted as res judicata. The rights of defendant 1 in the two plots were set out in a single paragraph of the additional pleas, as follows: 4 mudali majid Ganga Sahai numbe-Tan nisei men jo ki maurusi unite hain, ba maujudagi Debi Prasad, uske (sath), aur bad wafat Debi Prasad he uski bewa Mt. Jumna Kuer (he) shariq kasht rahe, aur numberan nizei kounke sharqat men chain taraddud karte rahe. Bayan mudaiyan khilaf uski mehz ghalat hai.

(3.) One of the questions for decision in this case is whether this pleading must be limited to a claim that defendants 1 and 2 were persons who had no rights in the holding during the lifetime of Debi Prasad but who were merely permitted by him to share in his cultivation and that Debi Prasad was the sole occupancy tenant, but that after the death of Debi Prasad and of his widow these defendants have a right to succeed to the occupancy holding under Section 22, Act 2 of 1901 or Section 24, Act 3 of 1926, as "the nearest collateral male relatives in the male line of descent" who shared in the cultivation of Debi Prasad. Against this narrow interpretation there are two objections: (1) There is no mention in this para or any other part of the W.S. that these defendants were "the nearest collateral male relatives in the male line of descent" or that they were any relatives of Debi Prasad at all. The reply is made that the plaint Para. 4 admitted the pedigree and this was admitted in the W.S. and that it was therefore not necessary to claim by succession. I think this reply is very weak. If the pleading is to be limited to succession, it should be shown that the pleading does plead succession, but it does not. (2) There is no mention that Debi Prasad was the sole occupancy tenant. On the contrary the paragraph begins by stating that the numbers are the occupancy tenancy of these defendants before there is any mention at all of Debi Prasad.