RAM AUTAR Vs. RAJA MUHAMMAD MUMTAZ ALI KHAN

JUDGEMENT

(1.) THE respondent, Rajah Muhammad Mumtaz Ali Khan, succeeded, on the death of his uncle, the Rajah Umrao Ali Khan, to the Bilaspur estate, in district Gonda, which includes the taluka of Utraula. At that time the respondent was a mere infant; and his estate remained under the charge of the Court of Wards from the end of the year 1865 until October, 1886, when he attained majority. In March, 1889, he instituted the present suit before the District Court of Fyzabad against Ram Autar, Salig Ram, and others, in which he prays for (1879 L. R. Ind Ap. 17. a decree for possession of the entire village Muhammadpur Banjarha, which is within taluka Utraula; (2.) cancellation of an order passed by the Settlement Court on June 30, 1871, which decreed the village Banjarha, " for birt," to one Ram Ghulam, and (3.) a decree for mesne profits.

(2.) THE appellants are the original or substituted defendants in the suit; and, with the exception of one, who has acquired by purchase a share in the interest claimed by the others, they are the lineal descendants of one Jawahir Lal, to whom they allege that a perpetual under-proprietary right in the village was granted, in or about the year 1838, by the Rajah Muhammad Khan Jeo, a predecessor of the respondent. Jawahir Lal had four sons, the eldest being Ram Ghulam, the grandfather of the said Ram Autar, and the youngest Salig Ram, who was an original defendant in this suit. On the death of Jawahir it is said that the members of his family succeeded to his under-proprietary interest in village Banjarha. Ram Ghulam obtained from the Settlement Court, in 1871, the order sought to be cancelled, as representative and for behoof of the whole members of the family. For many years prior to the death of Raja Umrao Khan in 1865, Salig Ram was employed by him as manager of the estate; and he continued to act in the same capacity during the whole period of its administration under the Court of Wards.

(3.) FOUR issues were adjusted by the District Judge, for the trial of the cause: (1.) Is not plaintiff bound by the decree of 1871 ? (2.) If not, is the present claim barred by limitation ? (3.) If not barred, are the defendants not entitled to hold the village as birt-holders ? (4.) If not so entitled, to what relief, if any, is the plaintiff entitled ? The learned judge, in their Lordships' opinion erroneously, laid the onus of establishing the third issue upon the respondent. In the event of its being held that the decree of 1871 was not such as to constitute a bar to the action, the duty of proving their own title aliunde was incumbent upon the appellants. Upon the issue of limitation, both courts below found against the appellants ; and no question has been raised with regard to it in this appeal. The District Judge, on January 6, 1890, found for the appellants upon the first and third issues ; in consequence of which findings it became unnecessary to consider the fourth issue, and the respondent's suit was dismissed by him, with costs. Upon an appeal by the respondent, the Judicial Commissioner reversed the decision of the District Judge upon the first and third issues, and found upon both of them for the respondent. He accordingly gave the respondent decree for possession of the village Muhammadpur Banjarha in terms of his plaint. He dismissed the prayer of the plaint in relation to mesne profits, because no evidence had been adduced at the trial in support of the fourth issue; and he deprived the respondent of his costs in both courts below, because forged interpolations had been made in certain documents put in by him connected with the Settlement Court proceedings of 1871.