DEODATT SINGH Vs. RAM CHARRITTAR JATI

JUDGEMENT

(1.) This is a plaintiff s appeal and the facts out of which it has arisen are as follows:

(2.) One Din Dayal was the owner of 47 bighas 9 biswas muafi sarkari in the village in question. This revenue-free holding was resumed by Government and it became what is called muafi zabti sarkari. On the 31st of March 1887, Din Dayal sold half to Sheo Harak. Sheo Harak sold this to Jagdeo. The other half passed to the heir of Din Dayal, namely, the defendant-respondent Ram Charittar. He sold one half of this half to the plaintiff on the 29th of September 1907, and he mortgaged the other half to the plaintiff. It is admitted before as that Din Dayal claimed a proprietary interest in the land. The plaintiff brought a suit upon his mortgage and obtained a decree for sale. He applied in execution for sale of the property. Ram Charittar pleaded that the property was ancestral and that it ought to be sold through the Collector. His plea was successful and the decree was transferred for execution to the Collector; the property was sold and purchased by the plaintiff and the decree entered as satisfied. The plaintiff then applied for and obtained formal delivery of possession. Then the plaintiff s difficulty arose. The proprietary interest which was mortgaged and sold was not recorded in the khewat but in the khatauni jamabandi. Ram Charittar was recorded as in possession of the land in the capacity of a tenant, the entry being in the words "sir khud." The plaintiff applied to the Revenue Court for the removal of Ram Charittar s name and the entry of his name in place thereof in the jamabandi. Ram Charittar pleaded in defence that the land was his sir land, that he had acquired an ex-proprietary right as tenant therein, and that his name should remain recorded. The Revenue Court came to the conclusion that the original interest of Ram Charittar in the land was that of a tenant with occupancy rights. It accordingly rejected the plaintiff s application, whereupon the plaintiff brought the present suit in which he asks for a decree for maintenance of possession or in the alternative, for possession if he be found not to be in possession. The Court of first instance gave the plaintiff a decree for possession as an auction-purchaser of resumed muafi land as entered in the relief and declared that the decision of the Revenue Court was invalid and not binding upon the plaintiff. In paragraph 1 of the plaint the plaintiff stated as follows: "The defendant is a hereditary muafidar of the resumed muafi land situated in Mauza Banjri, Perganah Bhadaon, granted by the Government. He has been, as such, in possession of the same."

(3.) This was clearly an allegation of proprietary interest.