SAHDON SINGH Vs. BALAM SINGH

JUDGEMENT

(1.) The plaintiffs who are the appellants before me, claimed to have acquired a certain lakheraj property by purchase and to be entitled to khas possession of the lands 2 bighas 18 kathas 8 dhurs = 197 acres entered in survey kathas 507, 508 and 509. They impleaded several sets of defendants of whom defendant No. 6 (defendant third party) and defendants Nos. 10 and 11 (defendants fifth party) claimed adversely to have the right as lakherajdars; while the claim to khas possession was resisted by the defendants first party who claimed to have this raiyati interest from raiyats on the land. The claim to the landlord's interest on behalf of defendant No. 6 extended to 45 acre out of plot No. 1364, but the claim of Baldeo and Chanchal extended to the whole of the land in suit. The property appears from the Record of Rights to have belonged to Bhatu Jha and others eight annas, Jugeshwar and others six annas and Singheshwar Jha two annas. In 1914 there was a cess re valuation and the lands were entered in the names of Bhatu, Singeshwar. Jugeshwar, Achambit and Bishundutt. It is said that Bajit Lal Jha and Sanjan Jha were in 1932 the last representatives of this family, and it was in that year that the plaintiffs got a conveyance from them. In the meantime there had been certificate proceedings for recovery of arrears of road cess against the lakherajdars and l-42 acre out of plot No. 1364 was put to sale on April 20. (sic), and was purchased by Saiyid Ghulam Siptain. There was again default which led to the taking of certificate proceedings in 1925. 45 out of plot No. 1364 was put up to sale along with other lands and was purchased by Phaguni, defendant third party. Toe plaintiff's case was that Phaguni obtained nothing by this purchase, because, first this land had been already sold to Saiyid Ghulam Siptain who was no party to the certiticate proceedings; and, secondly, all the persons named as certificate debtors in the proceedings (the names having apparently been taken from the old Record of Rights) were dead. The plaintiffs on April 26, 1932, took a conveyance from Saiyid Ghulam Siptain of the lands which he had bought in 1917. There remained still a residue in the hands of the successors of the old recorded lakherajdars, and of this residue amounting to about 055 acre the plaintiffs took a sale deed on June 26, 1932, from Bajit Lal Jha and Sanjan Jha.

(2.) At the trial, Phaguni put in a written statement in support of his title by his purchase, and in the first Court contested the suit. The contest was also raised by Baldeo Jha and Chanchal Jha, defendants Nos. 10 and 11, who alleged that they and not Bajit Lal Jha or Sanjan Jha were the successors of the old recorded lakherajdars and were entitled to the entire property. They did not admit that anything had passed to Saiyid Ghulam Siptain or to the plaintiffs by the sales to which 1 have referred. So much for the rival claims to the lakheraj right. Coming now to the tenant interest or right to khas possession, the Record of Rights showed khata No. 507 as raiyati of Chedi Dhobi, khata No. 50S as raiyati of Jhingar Dhobi and khata No. 509 as raiyati of Phuchi Dhobi. The plaintiff's case was that he and his father had been thikadars of this lakheraj since two years after the survey, that the lands were zirat or bakasht of the lakherajdars which were, cultivated by tenants-at-will on batai, as the lakherajdars were not resident in the village. Two years after the survey the plaintiff and his father were given the thika, the tenants gave up possession to them and they have ever since been in khas possession. On the other hand, defendants Nos. 1 to 5 alleged that by the death of Phuchi and Jhingar without heirs all three khatas had devolved on Mangal Dnobi, defendant No. 4, and Soman Dhobi, defendant No. 5. Soman Dhobi was said to be the son of one Aghnu Dhobi whose name does not appear in the Record of Rights in connection with this land at all. These Dhobis, Mangal and Soman, on May 9, 1932, sold their raiyati rights in the disputed land to the defendants first party Balam Singh and others, defendants Nos. 1 to 3. They professed complete ignorance of any thika in favour of the plaintiff; also of any title in favour of Saiyid Ghulam Siptain and professed to have been paying rent all along to defendant No. 10, Baldeo, and defendant No. 11, Ohanchal Jha. The Munsif came to the conclusion that neither Phaguni, defendant No. 6, nor Baldeo and Chanchal, defendants Nos. 10 and 11, had any right or title in the lands in suit and that the lakheraj right had validly and effectively passed to Saiyid Ghulam Siptain and from him to the plaintiff so far as concerned the lands covered by the sales to and by him and that Bajit Lal and Sanjan had effectively conveyed to the plaintiff a good title to the residue of the lands in suit.

(3.) Neither Phaguni, defendant No. 6 nor Baldeo and Chanchal appealed to the District Judge against that decision, but an appeal was presented by the defendants first party, Balam Singh and others. They in their appeal challenged the findings of the Munsif on all the issues which had been decided in favour of the plaintiffs, that is to say not only the issue as to the tenancy right of the Dhobis and after them the appellants but also the issues as to the proprietary or rather lakheraj right and they contended that the suit ought to have been dismissed in toto on a finding that the plaintiffs had no right of any kind. The manner in which the learned Subordinate Judge has dealt with the appeal is curious. He has considered only the question whether the plaintiffs had obtained khas possession of the lands or the tenant defendants remained in possession and has left open (in?) his judgment the question whether the auction purchase of Saiyid Ghulam Siptain or that of Phaguni was valid and has not at all considered the question whether Bajit Lal Jha and Sanjan Jha were competent to alienate the residue of the land or whether title was in Baldeo and Chanchal. It is obvious from a mere statement of the above facts that the appellate decision cannot stand.