BINDESHWARI RAI Vs. RAM PALAK SINGH

JUDGEMENT

(1.) Among the cosharer proprietors of the diara in which the land in dispute in this appeal is situate was one Brahmdeo. The interest of Brahmdeo was put up for sale in execution of a mortgage decree and purchased by Ajodhya Prasad. The auction, purchaser obtained delivery of possession from the Court in October 1923.

(2.) In 1929, a dispute relating to the possession of the land which is the subject- matter of this second appeal broke out between the plaintiff and defendant and led to a proceeding under Section 145. In those proceedings the defendant claimed a settlement from the auction-purchaser, Ajodhya Prasad, while the plaintiff alleged a settlement by the cosharer landlords. On 1 June 1929, the Criminal Court passed an order in favour of the defendant. The plaintiff therefore instituted the present suit based on an allegation that the land in dispute was settled with him in 1920 by all the co-sharer landlords. The trial Court held that the plaintiff had failed to establish the tenancy and accordingly dismissed the suit. In appeal this decision was reversed by the learned Subordinate Judge although that learned Judge found that the plaintiff was unable to establish the tenancy created by all the cosharer landlords in 1920. The Appellate Court however came to the decision that the land in dispute was settled with the plain, tiff by Brahmdeo a few months prior to the execution sale in which Brahmdeo's interest was purchased by Ajodbya Prasad.

(3.) It is contended by the learned advocate for the defendant-appellant that the Appellate Court has in fact, while rejecting the tenancy set up by the plaintiff from all the cosharer landlords, made out a fresh case in his favour of a tenancy created by Brahmdeo and that the tenancy commenced not in 1920 as alleged by the plaintiff in his pleadings but in 1922. The evidence on which the Appellate Court has come to this decision is of a nature which is capable of interpretation either for the view that the plaintiff was a tenant of Brahmdeo or the contrary.