RAOJI Vs. MT. GIRJABAI

JUDGEMENT

(1.) THE plaintiff-respondent's suit was dismissed in the first Court as the result of a perfunctory and careless judgment, in which neither the oral nor the documentary evidence was considered in a careful or accurate manner. The plaintiff, Mt. Girjabai, appealed to the Court of the District Judge who decreed the plaintiff's claim in a reversing judgment in which the facts of the case are very fully stated.

(2.) THERE are, in reality, only two questions involved in the present second appeal and on neither of these has the appeal any chance of success. The first point urged is that the plaintiff, although technically appointed lambardar of patti No. 1, is not, in reality, such, inasmuch as the two widows of Piraji are, in reality, the owners of their deceased husband's share, and the present plaintiff is not, in reality, an owner, but is, at the best, a mere reversioner. It is perfectly true that under Section 187, Sub-section (2), C.P. Land Revenue Act, 1917, a proprietor must be appointed lambardar and it may be that the appointment of the present plaintiff-respondent as lambardar will be found to be invalid when questioned in due course of law in the civil or the revenue Court, as the case may be, by the real proprietor of the share, but it does not seem to me that, as between the present appellant and the plaintiff-respondent, this question arises at all, in view of the admitted fact that, rightly or wrongly, Mt. Girjabai has been appointed lambardar as well as of the proved and admitted fact that the plaintiff is at present in possession of Piraji's share. Until the plaintiff's appointment as lambardar is, upset, she must be presumed to have all the ordinary powers of the lambardar under Section 188, Land Revenue Act, and it follows ipso facto therefram that she was entitled to sue in the present suit. I am in full agreement with the finding of the learned District Judge on this point and there is clearly no substance in the position taken up on behalf of the appellant in this connexion.

(3.) THE khasras are, no doubt, prepared on the spot by the patwari and, from one point of view, they1 might, therefore, be looked on as a most valuable piece of evidence, but, from another point of view, it would be equally possible to premise that they in this connexion form a species of record which interested parties might induce patwaris to make erroneous or incorrect entries in. The fact remains however, that the jamabandis for the same year contained divergent entries which are not reconcilable with the entries in D. 8 and D. 9. What the village, papers evidence as a whole does suggest is that Raoji began to cultivate certain areas of banjar land and from time to time obtained leases therefor from Ganpati and paid him rent, but these facts are an wholly insufficient basis on which to hold that the partition has been established. Even if we assume that Dhondba is now manager on behalf of Ganpati, the omission to examine the latter on behalf of the present appellant is a significant one and, still further, it is almost absurd to suppose that the appellant cannot have known or had reason to believe that lists of partition were available which he could have arranged to produce in evidence. I further concur with the remarks of the lower appellate Court in para. 3 of its judgment as regards the oral evidence on the question of partition. Very obviously there was insufficient material on record on which the District Judge could, with any certainty of fairness, have held that the partition had been proved.