BINDESHWARI PRASAD SINGH Vs. MAHARAJA KESHO PRASAD SINGH

JUDGEMENT

(1.) THE suit in which this appeal has arisen was instituted on December 22, 1917, in the Second Court of the Subordinate Judge of Arrah by the Maharaja of Dumraon for possession of lands in mauzas Majharia and Khutaha in the district of Shahabad by the ejectment of the defendants. It was alleged in the plaint that the milkiat interest of the Dumraon Raj in the 16 annas of each of the mauzas belongs to the plaintiff, and that his name stands recorded in respect thereof. The suit was brought against the two defendants Babu Parmeshwari Prasad Singh and his younger brother, Babu Bindeshri Prasad Singh, minors, zamindars, sons of Babu Kesho Prasad Singh, deceased, under the guardianship of their mother, Musammat Radha Kuar. Kesho Prasad Singh and the defendants constituted until he died a joint Hindu Mitakshara family. The second defendant died a minor and without issue after the suit was brought.

(2.) THE defence is that the defendants had a right of occupancy in the lands from which it was sought to eject them. If that right of occupancy existed, it was acquired under the Bengal Tenancy Act, 1885 (Act VIII. of 1885). The defendants were in possession, and under the circumstances of the case it was for the plaintiff to prove that he was entitled to eject them. Seven issues were framed: the third was the material issue. It was: "Have the defendants occupancy rights in the land in suit 1 "That issue practically depended on whether the plaintiff should succeed in proving that the lands in question were his ziraat, private lands, as the proprietor. The Subordinate Judge found that the lands were not ziraat land, and that the defendants had a right of occupancy in them, and made his decree dismissing the suit. From that decree the plaintiff appealed to the High Court at Patna, and the High Court finding that the defendants had no right of occupancy in the lands, reversed the decree of the Subordinate Judge, and gave the plaintiff the decree for ejectment and mesne profits which he claimed. From that decree of the High Court this appeal has been brought.

(3.) ALL the lands in suit were in the bed of the river Ganges until shortly before 1843, but whether their position in the bed of the Ganges was owing to erosion or not their Lordships do not know. The lands to which the suit relates consist of 228 bighas, 11 kathas and 12 dhurs of land, which emerged from the Ganges shortly before 1843, and in 1843 became suitable for cultivation, and of 25 bighas, 14 kathas and 17 dhurs of land which in or shortly before 1902 emerged from the Ganges, and in 1904 were suitable for cultivation. The lands are contiguous, and were in the plaint alleged to be ziraat of the plaintiff.