GULAB RAIJI Vs. BAI TEJBAI

JUDGEMENT

(1.) The suit was filed by the plaintiff-respondent to recover possession of certain Bhagdari lands comprised in a sale made by her to the defendant on the 25th January 1910 on the ground that the sale being of an unrecognized portion of a peta bhag was illegal and void under the provisions of the Bhagdari Act. The sale by the plaintiff" took place at the same time as the sale by a woman named Tebai to the defendant of other portions of the peta bhag to which the plaintiff s sale related, and they have been held to be one alienation though evidenced by the two documents, They related, taken together, to the whole of Survey Nos. 34, 77, 113, 119 and a portion namely 2 acres and 20 gunthas of Survey No. 157, and the Survey Numbers enumerated comprised the whole of the peta bhag or recognised subdivision of a bhag. The remaining portion of Survey No. 157 was actually in possession of the defendant, the transferee under the two sale-deeds. It has been hold by the learned Judge of the lower appellate Court that the possession of the defendant was as owner acquired by adverse possession of 2 acres and 2 gunthas comprising the balance of Survey No. 157. The effect of the two sale-deeds, therefore, on the 25th January 1910, was, provided the sale- deeds were not invalid, to vest in the defendant the whole of the peta bhag or recognised sub- division. It is conceded that if by a more elaborate convincing procedure care had been taken to vest in a third party the interests of the plaintiff, the defendant and Tejbai by one document, and the third party had then retransferred to the defendant, no objection could have been taken that the transactions violated the provisions of the

(2.) Bhagdari Act. For Section 5 of that Act provides that nothing in the Act contained shall be construed as prohibiting the alienation of any bhag or share, or recognised sub-division of any bhag or share, if such alienation be in other respects warranted by law, the object and intention of the Act being to prevent dismemberment of bhags or shares, or recognised sub- divisions thereof in Bhagdari villages. It is obvious that the effect of the transactions has not been to effect dismemberment of bhaga or shares. It has had the effect of bringing together the various severed portions of a recognised sub-division into the Rends of one owner. The substance of the transaction is what must be looked at, and if the substance is regarded, it appears to me clear that there has been no alienation such as is prohibited by the terms of Sections 3 of the Act. I would, therefore, reverse the decree of the lower appellate Court and dismiss the suit with costs throughout upon the plaintiff. Shah, J.

(3.) I am of the same opinion.