SOMAR RAM Vs. BADHU RAM

JUDGEMENT

(1.) This appeal arises out of proceedings in execution of a decree for a sum of money. The respondent who holds a tenure under the proprietor of the Gande Estate in the Hazaribagh District obtained an advance from the appellant by mortgaging his tenure. He subsequently gave the tenure in usufructuary mortgage but in the end the appellant instituted a suit on his debt and obtained a money decree. In execution of the decree he put up the tenure to sale. The tenure was described in the Record of Eights as thika doami and the judgment-debtor objected that such a tenure was not transferable.

(2.) In support of his claim, he put forward two witnesses, one of whom alleged that the thika doami tenure was not transferable without the landlord's consent, but that these tenures; were transferable with his consent; while the other came forward to say that thika doami tenures were not transferable at all. This witness held three thika doami tenures, all three of which had been mortgaged.

(3.) On the other side a large amount of evidence was produced to show that thika doami tenures in that neighbourhood were in practice transferable by sale and it was proved incidentally that the respondent's co-sharer had actually transferred his share in the particular tenures under question to the appellant. The Courts relying on the description of the incidents of thika doami tenures given in para. 196 of the Settlement Report of Hazaribagh District, held that the tenure was absolutely non-transferable and the decision of the Judicial Commissioner on this point has been affirmed in a second appeal by a single Judge of this Court.