MATHURA SINGH Vs. RAMA RUDRA PRASHAD SINHA

JUDGEMENT

(1.) This is an appeal against a decision of a Subordinate Judge of Shahabad giving the plaintiff respondents a decree for joint possession of one-third share in 142.03 acres of land situated in village Dharupur in the district of Shahabad and for mesne profits. The plaintiffs, who are wards of the Court, are proprietors of one- third share of village Dharupur. The defendants are the landlords of the remaining two-thirds being proprietors of one-third and mukarraridars of another one-third. The plaintiffs share was in the zarpeshgi lease of the defendants family for a period of 25 years which expired in 1306 fasli, but as the zarpeshgi money was not paid up the defendants continued in possession of the share. Thereafter under a deed, dated 6 June 1906, the plaintiffs share was given in usufructuary mortgage to the defendants for a period of 10 years from 1313 to 1322. The plaintiffs redeemed the mortgage by depositing the money in Court on 17 July 1926, and got possession of the village. Now the plaintiffs case is that in spite of the mortgage having been redeemed the defendants did not give the plaintiffs possession of their one-third share of the bakasht lands of the village described in Schedule A (164.79 acres or 254 bighas 18 dhurs) and Schedule A(1) (65.56 acres) of the plaint. They therefore sought recovery of joint possession of these lands and also a declaration that an ex parte decree obtained by the defendants against them in respect of Schedule A lands be declared collusive, fraudulent, illegal, null and void and not binding upon them. They further asked for a decree for Rs. 2,441-10-8 for damages alleged to have been caused by the defendants to the mortgaged property during the term of the usufructuary mortgage and also for a decree for Rs. 5,618-0-1 as mesne profits in respect of the lands in suit.

(2.) During the course of the settlement operations the defendants were found indirect possession of 164.79 acres of land) (mentioned in Schedule A of the plaint) which they claimed to be their raiyati lands with occupancy rights therein. The Settlement Officers however recorded these lands as "bakasht landlord mukarraridar and zarpeshgidar." It may be noted that the word "bakasht" malik or thicadar was used by the Settlement Officers to indicate lands in direct possession of the malik or tenure-holder which are not their zirait lands as defined in Section 120, Bengal Tenancy Act, (vide-Guide and Glossary to the Survey and Settlement Operations in the Patna and Bhagalpur Divisions, p. 14). The defendants thereupon instituted a title suit (No. 242 of 1912) against the plaintiffs for declaration of their occupancy rights in these lands. The suit was defended by the manager of the Court of Wards who was managing the plaintiffs estate, the plaintiffs being then the wards of the Court as they are even now. After the suit had remained pending for some time it was decreed ex parte on 3 November 1913. There was an attempt by the plaintiffs through the same manager to have the ex parte decree set aside and a petition to that effect, was filed on 11th December 1913, which was dismissed for default on 17 January 1914. The plaintiffs have challenged this decree in their plaint alleging that it was obtained by fraud and collusion between the defendants (who were plaintiffs in that suit) and the then Manager of the Court of Wards, or that at any rate the suit was decreed ex parte on account of gross neglect of the manager. They have asked that this decree be declared null, void and inoperative.

(3.) The lands covered by Schedule A(1) of the plaint were during the settlement operations in possession of certain raiyats. The defendants claimed them also to be their raiyati lands with occupancy rights therein and alleged that the raiyats found in possession thereof were their temporary under-raiyats. The settlement officers disallowed the defendants claim and recorded the persons found in possession of these lands as raiyats. Later on the defendants obtained from these persons surrender of their rights in their favour and have been in direct possession of these lands since then. The plaintiffs case is that these were the lands of the raiyats which on account of their surrender or abandonment came in direct possession of the landlords and on the redemption of the mortgage of their one- third share of the village they are entitled to have their share in them. The defence was that the lands in suit were the raiyati lands of the defendants, and not the bakasht lands of the landlord and therefore the plaintiffs were not entitled to get any share in them. There was also a plea that the plaintiffs suit in respect of Schedule A lands was barred by res judicata in consequence of the ex-parte decree stated above. Limitation was also pleaded in defence of the suit.