JAGESHUR SINGH Vs. ALAKH NARAIN SINGH

JUDGEMENT

(1.) This second appeal is by defendants 1 to 3. The facts were as follows: In 1913, Khuban and others executed in favour of the landlords, defendants 11 and 12, a document which has been called a zarpeshgi kabuliyat, evidencing the advance of Rs. 145-8-0 as peshgi. The executants agreed to pay rent of Rs. 30- 12-0 for the term of the lease which was for three years. In 1916 Khuban who was a settled raiyat of the village was recorded as an occupancy raiyat in respect of the demised lands. In 1917 another document, called an ijara deed, was executed by defendant 11 in favour of Khuban and others with regard to 3 bighas of land and evidencing an advance of Rs. 200 as peshgi. The term of the ijara was for five years.

(2.) Three years later, Basdeo Narayan, defendant 11, executed a zarpeshgi with regard to 3 bighas of land in favour of defendants 3 and 4 and in 1922 he executed an ijara with regard to 12 bighas in favour of defendants 1 and 2. Khuban and others sold their interest to the plaintiff in 1913 in respect of plot No. 208 and a part of plot No. 87. Shortly afterwards, the plaintiff sold part of plot No. 208 to the sister of defendant 11 and about the same time defendants 11 and 12 sold their milkiat interest in the property to Madho Singh, the cousin of the plaintiff. The plaintiff then purchased a further 10 bighas from Khuban. In 1924, defendants 1 to 4 sued to recover possession of the properties covered by the zarpeshgi of 1920 and the ijara of 1922. In execution of the decree obtained in that suit, defendants 1 to 3 (the appellants) purchased the property and obtained delivery of possession. The plaintiff applied to be restored to possession of the property but his application was dismissed. He thereupon instituted a suit out of which this appeal has arisen.

(3.) The decision of the appeal depends upon a construction of the zarpeshgi lease of 1913. If this was a lease for cultivating purposes then, as Khuban was a settled raiyat of the village, he obtained occupancy rights in the lands in suit. If, on the other hand, it was a transaction in the nature of a mortgage, then he did not obtain occupancy rights in the suit lands. The material portion of the zarpeshgi lease of 1913 is as follows: As we, the executants, who are cultivators, have no sufficient kasht for our maintenance in the mauza...it is necessary for and incumbent upon us to take settlement of further kasht land for cultivation. We therefore approached Babu Basdeo Narayan Lal requesting him to give us kasht lands on nakdi system for cultivation for a definite period.... He granted our request and became ready to settle the kasht land with us on nakdi system, for a definite period to take zarpeshgi from us and to get a kabuliyat executed for a period of three years, we have therefore...taken settlement of the whole and entire 29 bighas 5 kathas of kasht land...on payment of Rs. 145-8-0 as peshgi money, at a rental of Rs. 6 per bigha for a term of three years, from the beginning of the agricultural year, 1321 Fasli.