AMRIT RAM Vs. TIKAIT DWARKA NARAYAN SAHI

JUDGEMENT

(1.) In this first appeal the defendants are the appellants. Plaintiff Tikait Dwarka Narayan Sahi, proprietor of Gadi Tilaiya, pargana Gumob, thana Kodarma, district Hazaribagh, sued the defendants for declaration of title and recovery of possession is respect of 13 big has of land covered by a sanad (Ex. A) dated 17 November 1911. The Sanad in question was granted by the then proprietor, Fateh Narain Singh, an elder brother of the plaintiff.

(2.) Defendants 1 to 17 are the heirs of Jhari Ram, the grantee. Defendant 18, who was subsequently added as a party, is the widow of Jhari Ram. She was impleaded as Jhari Bam had transferred plot No. 3350, one of the plots in dispute, to her by a, deed of gift, Ex. L, dated 18 September 1981. A. pleader commissioner was appointed at the instance of the plaintiff, and his report which is to be found at page 49 of the Paper Book, Parts I and II, shows that when he visited the locality he found a house under construction on this particular plot. Defendant 19 is an idol of whom defendants 1 to 18 are the sebaits. This defendant was added as a party in view of the fact that by Ex. K, dated 18 September 1931, the said Jhari Ram dedicated a portion of the disputed land to this idol. The claim of the plaintiff was contested by the defendants. Defendants 1 to 6 filed one written statement. Another was filed by defendant 18. Defendants 6 to 17, who were minors, filed another written statement through their guardian ad litem. They simply adopted the written statement filed by defendants 1 to 5. The learned Additional Subordinate Judge who tried the case framed as many as 11 issues, some of which were not pressed. Before I refer to the issues, I may here state what the case of the plaintiff-respondent was. Stated within a brief compass, his case was as follows: Deceased Jhari Ram was a karpardaz of Tikait Pateh Narain Sahi. The latter was a very simple man, and JhariRam being shrewd had a great hold on liim. Jhari Ram used to look after the affairs of Tikait Fateh Narain in Court, and he also managed the other affairs of the Tikait in his capacity as his karpardaz (servant). Tikait Pateh Narain promised to grant a service tenure in respect of the land in schedule kha of the plaint to Jhari Ram for his future service as a karpardaz on condition that if Jhari Ram should cease to render service to the Tikait or his successor-in-interest, the latter will have a right to resume the jagir. On 17 November 1911 a sanad was granted, but not in the terms already settled between Tikait Fateh Narain and Jhari Ram. Jhari Ram, by fraudulent means, got it mentioned in the sanad that it is a dowami jagir and is granted for service already rendered. There was also no mention that if Jhari Ram failed to render services the jagir will be resumed. Within a month or so Tikait Pateh Narain Sahi came to know of the fraud perpetrated by Jhari Ram, and he called him to his presence and rebuked him for what he had done. Jhari Ram expressed regret and promised that the terms already agreed upon will hold good. In the finally published record of rights the land in question was recorded as a service tenure resumable on the death of the grantee. Jhari Ram died about the year 1935. The plaintiff who had succeeded to the Gadi on the death of his brother Tikait Pateh Narain Sahi called upon the heirs of Jhari Ram to render service like their deceased father. As they declined to render service, the plaintilf wanted them to give up possession of the suit land, but they refused to do so. The plaintiff was then compelled to bring the suit out of which the present appeal has arisen.

(3.) In their written statement the defendants denied that Jhari Ram was ever a karpardaz of Tikait Fateh Narain Sahi. Their case was that Jhari Ram was a money-lender and a businessman. It was further their case that one Akbar Ali brought a suit against late Tikait Pateh Narain Sahi and obtained a decree. According to the defendants, when in the execution proceedings the property of Tikait Pateh Narain was going to be sold Jhari Ram advanced money and saved the property with the result that the Tikait was greatly pleased and granted Jhari Ram a permanent Jhari, as evidenced by Ex. A. On behalf of the defendants it was also said that Jhari Ram made pairvi on behalf on the Tikait in Court in connection with the suit brought by the said Akbar Ali. The allegations of the plaintiff that Jhari Ram continued to render service to Tikait Pateh Narain were denied. It was also denied that after Jhari Ram's death the plaintiff called upon his heirs to render service. The allegation that Jhari Ram committed fraud in the matter of the execution of Ex. A was wholly denied.