GANGA SAHAI Vs. NIHAL SINGH

JUDGEMENT

(1.) Two plaintiffs, Ganga Sahai and Chandi Prasad, sued in the revenue Court Babu Nihal Singh for recovery of arrears of profits under Section 165, Tenancy Act. Nine other persons were made pro forma defendants because their names also existed in the khewat. The plaintiffs case was that in the khewat consisting of 18 biswas of land the plaintiffs, along with nine defendants other than Babu Nihal Singh, were recorded as cosharers of one-half and Babu Nihal Singh of the other half, that by a partition of certain properties between the plaintiffs and the pro forma defendants the half-share in this khewat had been allotted to the plaintiffs alone, that the plaintiffs cultivated 5 biswas of land while Nihal Singh cultivated 13 biswas and that on account of this difference Babu Nihal Singh had collected more than his share of profits and, therefore, was liable to pay to the plaintiff's their share of excess profits recovered by Nihal Singh. Though there had been partition, as is alleged by the plaintiffs, the names of the nine pro forma defendants continued in the khewat, and the share recorded against the names of the plaintiffs was only one-eighth. Babu Nihal Singh appears to have raised the plea in the revenue Court that the plaintiffs were entitled to recover profits of only one- eighth share and not one-half, and that, according to the plaintiff's own admission, they had received profits to the extent of one-eighth by cultivating 5 biswas. He, therefore, pleaded that the suit should be dismissed. The pro forma defendants raised no objection to the claim of the plaintiffs that they were entitled to one-half. The situation was therefore peculiar. The real object of Babu Nihal Singh was to make out that he was full owner by right of adverse possession of 13 biswas land and not only of 9 biswas, but because of the want of correction in the khewat he was able to take advantage of the entry in the khewat and to plead that the suit should be dismissed only on the basis of the record in the khewat. In reality, even if the plaintiffs were not owners of one-half, the other cosharers were on the record, and the revenue Court could have passed a decree in favour of the plaintiffs and the nine pro forma defendants, and no necessity would have arisen for reference to the civil Court under Section 201, as admittedly the plaintiffs and the pro forma defendants are recorded as having the proprietary right in the khewat to the extent of one-half to, entitle them to institute the suit.

(2.) Any way the plaintiffs were directed to establish their title in the civil Court. There the real defence which had to be fought out was whether the defendant was entitled to receive profits of 9 biswas of land only or of 13 biswas of which he was actually in possession. The learned District Judge held that the plaintiffs were owners of a one-eighth share in the khewat only. That decision, however, cannot be maintained. It was open to the District Judge, if he did not desire to grant a declaration in favour of the plaintiffs, to grant a declaration to the plaintiffs and the nine pro forma defendants jointly. The pro forma defendants have not objected; so it is obvious that the plaintiffs alone are owners of one-half.

(3.) The real point in issue is whether the defendant Nihal Singh has become owner of the 13 biswas land in this particular khewat by adverse possession. Both the subordinate Courts have decided the point in favour of the contesting defendant. I am of opinion that this finding is incorrect. On behalf of the defendant-respondent Mr. Haribans Sahai first raised the plea that the finding of the lower appellate Court is one of fact. There were before that Court circumstances on which it could arrive at the finding that there had been an ouster of the plaintiffs from 4 biswas of land, though the plaintiffs and Nihal Singh were co-owners. He quoted a single-Judge ruling of the Madras High Court, Mariammal V/s. Augustine Roy . In that case, however, the plaintiff had not been in possession at all, and the question was whether the possession of his co-sharer would be tantamount to the possession of the plaintiff. The learned Judge pointed out that under certain circumstances the possession of a co-owner can be adverse, and that the question was one of fact. In the present case, in my opinion, the subordinate Courts have misdirected themselves. The learned Munsif has written a very thoughtful judgment, He has arrived at a wrong conclusion, because, I believe, he is not familiar with revenue law or proprietary tenure.