FATEH CHAND Vs. KISHAN KUNWAR

JUDGEMENT

(1.) THE facts of the suit out of which this appeal arises are undisputed. THE plaintiffs purchased six plots of land consisting partly of groves and partly of plots of land which were formerly the sites of houses in Rampur but which have since been brought into cultivation after demolition of the houses standing thereon. THE defendant is entered in the revenue papers as the zamindar of the entire mahal in which the plots so purchased are situate. After the purchase, the plaintiffs applied to the Deputy Collector to be entered as the absolute owners and proprietors of the plots so purchased. THEy were opposed by the defendant as zamindar and the application was refused. THE plaintiffs then instituted the present suit to cancel the order of the Deputy Collector refusing to enter the names of the plaintiffs as proprietors. Apart from the question of form, the object of the suit is to obtain a declaration that the plaintiffs are the absolute owners and proprietors of the purchased plots of land and to establish their title thereto against the defendant.

(2.) THE Court of first instance dismissed the suit. THE lower appellate Court allowed the appeal and decreed the plaintiffs claim. From the judgment of the lower appellate Court it appears that it is founded on inferences of law drawn by the learned Subordinate Judge from certain documents and the wajib-ul-arz, which were given in evidence. THE documents show that the owners of houses in Rampur had been in the habit of selling and transferring their houses. THE wajib-ul-arz sets forth that the occupiers of houses had this power, but all through the entries the zamindar is recognised, and it is stated that if a new house is to be built the permission of the zamindar must be obtained. THE entry in the wajib-ul-arz as to groves is to the effect that isolated trees and clumps of bamboos planted by the tenant can be out by him, and as to rent-free groves, if the trees should die out and the land be brought into cultivation, rent must be paid, and that if a new grove was to be planted the leave of the zamindar must be obtained. THE inference of law that the Subordinate Judge has drawn from this evidence (about which there is no dispute), is that the groves and the land which had been the sites of houses were the absolute property of the persons who occupied and used them. In our judgment this inference is a wrong and impossible inference and the decision of the learned Subordinate Judge based thereon is clearly wrong. It was argued that the finding was a finding of fact and that this Court in a second appeal could not interfere. THE learned vakil for the appellant stated that he had been through the record and was prepared, if necessary, to give a certificate that there was no evidence to support the finding of the lower appellate Court. We, however, think that on the existing grounds of appeal it is open to us to set aside the decision of the Court below. THEre is no dispute about the facts of the case or any finding of fact arrived at by the learned Subordinate Judge, THE decision is based entirely upon a totally erroneous inference of law drawn from facts and evidence about which there is no dispute. We allow the appeal, set aside the judgment of the lower appellate Court, and restore the judgment of the Court of first instance with costs in all Courts.