MAMRAJ Vs. MURKI

JUDGEMENT

(1.) This appeal must prevail. The suit giving rise to the present appeal was occasioned by a suit for profits having been filed in the Revenue Court by the defendants of the present suit against the plaintiff-respondent. That suit was for a share of the profits of khewat No. 62 in village Tatiri in Meerut District. The defendants appellants before us were recorded co-sharers in that khewat and they brought the suit for their shares of the profits. The plaintiff-respondent resisted that suit on the ground that the names of the defendants appellants were fictitiously entered in the khewat, and as such, they were not entitled to their shares of the profits of khewat No. 62. This plea of the plaintiff was, in view of the provisions of Section 201(3) of the Agra Tenancy Act (II) of 1901), overruled by the Revenue Court and the suit for profits filed by the defendants appellants was decreed. This led to the institution of the suit giving rise to the present appeal by the plaintiff-respondent. The suit was for a declaration that the plaintiff is owner in possession of a 5/12 in khewat No. 62 and that the defendants names with respect to that share were fictitiously entered in the khewat and in the alternative for possession of that share and for an injunction against the defendants directing them not to put the decree for profits obtained by them into execution.

(2.) There is no controversy about the facts. The parties are descended from a common ancestor named Sita Ram. The defendants are descendants of two sons of Sita Ram named Tulshi Ram and Dula Ram. The property in dispute admittedly is the ancestral property of the parties to the suit. About 50 years prior to the institution of the present suit, the ancestors of the defendants-appellants left their native village and settled in Delhi, where they carried on some busine Secs.It has been found by both the Courts below that at times they paid visits to their ancestral village but they never claimed nor received any portion of the profits of the khewat in dispute.

(3.) The plaintiff maintained that inasmuch as the defendants ancestors had left the village and had no connection with the share in dispute, their right to the same was extinguished and the plaintiff-respondent was solely entitled to the entire ancestral share in khewat No. 62. In support of this contention the plaintiff placed reliance on the Wajib-ul-arz of It 1860 of the Settlement known as Nisar Ali Khan. In that wajib-ul-arz, it is laid down that, if any "mafroor" returns to the village, he shall be entitled to the possession of his property only with the consent of the possessor and not, if the latter refuses. The defendants, on the other hand, relied on an extract from the Wajib-ul-arz of the Settlement of Mohar Singh (1870). It is provided in that wajib-ul-arz that "now in this village Yado son of Dayala is mafroor and Dungarson of Sahib Singh is in possession. The agreement is that whenever the mafroor or his descendants returned to the village then without any regard to the question of profits or loss he or they shall be entitled to possession of their property and no objection shall be taken thereto." Reliance was also placed by the plaintiff on a decision of a learned Judge of this Court, dated the 29 May, 1919. It is as well to state here that it has been held by both the Courts below that the decision just referred to does not operate as res judicata in the present litigation.