KALI CHARAN RAM SAITHWAR Vs. BANKA CHAND

JUDGEMENT

(1.) This is a second appeal by the defendants against the decree of the lower appellate Court granting the suit of the plaintiffs in terms of relief in para. (a). The facts are simple. One Mahabir Chand owned a six annas share in mahal No. 9 of mauza Atsia. He died many years ago and was succeeded by his widow, Mt. Rachpal Kuari, and afterwards by his daughter, Mt. Baijnath Kuari, as limited owners. In the year 1910 Mt. Baijnath Kuari sold three annas share of the zamindari to Achaibar, father of the defendants, and in the same year she sold a three annas share to Bindeshari Chand. She then died in 1912. The plaintiffs were entitled to succeed to 2/3rds of the zamindari of Mahabir Chand, but they did not bring any suit for possession until the year 1924, when the suit for possession of 2/3rds of the zamindari was filed and obtained a decree on 13 August 1925. Meanwhile several matters had happened in regard to this six annas share in mahal No. 9 as the lower appellate Court has held that Achaibar and Bindeshari Chand by cultivating various plots acquired khudkasht rights to the plots which became sir rights. In 1921 the sons of Bindeshari made a sale deed of their three annas zamindari share to Achaibar, father of the defendants. The sale deed did not mention sir or khudkasht rights and plots. Achaibar therefore between 1921 and the decree of the plaintiffs in 1925 was holding as the owner of the six annas zamindari share. As reversioners the sons of Achaibar are entitled to 1/3 share under the decree of 1925 and the plaintiffs are entitled to the remaining 2/3rds share in the zamindari. Now the present suit has been brought by the plaintiffs in 1931, and relief (a) which has been granted is as follows: A decree awarding joint possession over 2/3 share in the sir and khudkasht lands detailed at the foot hereof together with Rs. 100 on account of damages in respect of the produce for the past year....

(2.) I may note that the lower appellate Court noted on point No. 4 in regard to Rs. 100 damages that this was not pressed in appeal and that apparently in granting a relief in para, (a) the lower appellate Court made a mistake as it did not intend to include the Rs. 100 damages. The appeal however will be decided on other grounds. Now it is found by the lower appellate Court that Mahabir Chand, the last male owner, had no rights of sir or khudkasht. The plaintiffs claimed as reversioners of Mahabir Chand by inheritance and their rights by inheritance in my opinion are limited to whatever rights Mahabir Chand had. Those rights of Mahabir Chand were zamindari rights, and in my opinion the rights of the plaintiffs are limited to 2/3rds of the zamindari rights of Mahabir Chand which they obtained by the decree in 1925. In the present suit the plaintiffs are asking for something further, that is, for possession of 2/3rds of the sir and khudkasht, and this claim is also based on their inheritance as reversioners of Mahabir Chand. Mahabir Chand did not have those rights and at the time when the last limited owner died in 1912 no such rights were in existenoe as the Court below has held that the sir and khudkasht rights came into existence about the year 1916. I fail to see therefore how any rights to the plaintiffs to possession to this sir and khudkasht to the extent of 2/3rds can be based on inheritance from the person who did not possess such sir or khudkasht rights. A distinction has been drawn between the rights in sir and khudkasht and the proprietary rights in Section 5, Agra Tenancy Act of 1926, which provides as follows: On the death of a sir holder his sir right shall devolve on the person who succeeds to his proprietary interest in the sir.

(3.) There are therefore two kinds of rights possessed in sir : (a) the proprietary interest in the land; and (b) the right of a sir holder, which is an entirely different right and which is as different to the proprietary right as is an ex-proprietary interest or an t interest of an occupancy tenant. Learned Counsel for the plaintiffs- respondents has 1 not shown any ruling in his favour. On t the other hand reference has been made to a Full Bench ruling reported in Hanuman Prasad Narain Singh V/s. Mathura Prasad Narain Singh . That case decides a somewhat similar question whether the parties were members of a Hindu family which, as stated on p. 992, was found to be still in some respects a joint family, but they were holding property separately and. there was a finding that the defendant had been in separate possession of the sir plots in the village of Baraon for 24 years. The Court held that under such circumstances a decree for joint possession was properly refused. In that case it was not found that the sir and khudkasht had not originally belonged to the joint family, and therefore the plaintiffs in that case might have had a claim that as members of the joint family originally they were now entitled to a share, but the Court held that because the plaintiffs had acquiesced in the separate possession of the sir by the defendants for 24 years, a decree for joint possession should not be granted. In the present case the claim of the plaintiffs is much weaker because the finding distinctly is that the sir rights and khudkasht rights had never been held by Mahabir Chand, the ancestor of the plaintiffs, from whom alone the plaintiffs claim. If therefore in the Pull Bench ruling a decree for joint possession was not granted, a fortiori a decree for joint possession should not be granted in the present case. For these reasons I allow this second appeal and dismiss the suit of the plaintiffs with costs throughout. As points of law have been argued permission is granted for Letters Patent Appeal.