CHITAN SINGH Vs. GOSAINDAS MANJHI

JUDGEMENT

(1.) THE subject-matter of this litigation is plot No. 1676 which stands recorded under khewat No. 14 belonging to the plaintiff and of which defendants 1 to 5 are recorded to be raiyats. THE settlement entry further shows that defendants 1 to 5 held this land on payment to the plaintiff of an annual rent of Rs. 1-4-0. THE plaintiff however challenges the correctness of the entry. His case is that defendants 1 to 5 are not tenants of the land, that the land was formerly in his khas possession but he has been wrongfully dispossessed by the defendants. THE reliefs which he claimed in the suit were these: (1) on a declaration of the maurasi right of the plaintiff to the disputed property, the defendants may be ejected from the land; and (2) that it be declared that the entry in the Record of Eights is wrong and the same may be corrected. Defendants 2 to 5 did not appear to contest the suit but defendant 1 did contest it. His case was that the disputed land did not appertain to the plaintiff's mukarrari, but appertained to his own tenure which he held under the superior landlord and that he had been paying rent for this land as well as for the other lands appertaining to his tenure to the superior landlord. THE trial Court found that the survey entry (the correctness of which was impugned by both the parties) was wrong and held that the disputed land was not included in the plaintiff's tenure, but it appertained to the tenure of defendant 1 only. He further held that the plaintiff having no cause of action for the suit was not entitled to any relief and he accordingly dismissed the plaintiff's suit. THE plaintiff then appealed from this decision and the appeal was allowed in part. THE appellate Court held that the entry in the Record of Eights was correct and that the land appertained to the plaintiff's tenure and the defendants were not liable to be ejected. THE learned Subordinate Judge who heard the appeal concluded his judgment with these words: THE result is that the suit is decreed in part with costs. THE plaintiffs claim for khas possessions is disallowed. THE plaintiffs tenure right in respect of the disputed land is declared and that defendants 1 to 5 are further declared to be tenants under the plaintiffs in respect of the disputed land on payment of rent of Rupees 1-4-0 per year as recorded in the Settlement Record of Rights. 3. In this second appeal which has been preferred by defendant 1, his main contention is that no declaration should have been made by the lower appellate Court in favour of defendants 2 to 5 who had not contested the suit of the plaintiff and who had not appealed against the decision of the trial Court. It is pointed out in this connexion that in the plaint the plaintiffs have nowhere asked for a declaration that defendants 1 to 5 are tenants in respect of the disputed land. It is contended on behalf of defendant 1 that there should be no adjudication of the rights inter se of defendants 1 to 5, and it is pointed out that the decree of the Subordinate Judge as it stands may be taken to amount to such an adjudication. It appears to me that the decree should be confined to the reliefs which were asked for by the plaintiffs in the plaint and that the decree should simply state: (1) that the disputed land appertains to the tenure of the plaintiff; (2) that the defendants are not liable to be ejected, and (3) that no case has been made out by the plaintiffs to rebut the presumption of correctness of the Record of Rights; in other words, the plaintiff's suit must be dismissed except as to the prayer for the declaration that the disputed lands appertain to his tenure. THE decree of the lower appellate Court will therefore be modified accordingly, and subject to the modification the appeal will be dismissed. THE parties will bear their own costs in this Court.