MISRI LAL Vs. GOPI CHARAN

JUDGEMENT

(1.) This is an appeal by one of the two defendants in the suit out of which this appeal has arisen. Certain persons, who were all minors, came to Court on the allegation that they were occupancy tenants of a certain holding of which defendant 2, the present appellant, is the zamindar, that the holding was recorded in the name of defendant 1, Mt. Tulsha, who was the widow of a joint Hindu family governed by the Mitakshara law and had no interest in the tenancy, and that the said defendant 1 executed a deed of relinquishment in favour of the zamindar. The date of relinquishment is 11 August 1921. The suit was instituted on 19th December 1922 for the following relief: It may be declared that the plaintiffs are the occupancy tenants of the holding given below and Mt. Tulsha, defendant 1, has no concern with she said holding and that the relinquishment relied upon by defendant 2, which is fictitious, fraudulent and collusive, is ineffectual against the plaintiff.

(2.) Defendant 2 alone contested the suit and he pleaded, inter alia, that the suit was not cognizable by the civil Court. In the course of the proceedings in the Court below, the learned vakil for the plaintiff stated that he wanted to withdraw his claim regarding the declaration, that the plaintiffs were the occupancy tenants of the holding in question and he confined his suit to the relief as to the cancellation of the document of relinquishment.

(3.) The Courts below held that the suit was cognizable by them, but they differed on the question whether Mt. Tulsha was or was not the real tenant of the land. The Court of first instance dismissed the suit on the ground that the plaintiffs had failed to establish that they were the tenants and not Tulsha. The learned District Judge came to the conclusion that Tulsha's husband could not possibly have himself acquired the tenancy and as he predeceased his father while he was quite young, it must be taken that it was his father who acquired the tenancy. In this view of the facts, the learned Judge came to the conclusion that the plaintiffs were the occupancy tenants and he accordingly gave the declaration that the dead of relinquishment executed by Mt. Tulsha was null and void as against the plaintiffs.