LEKHRAJ Vs. PARSHADI ALIAS RAM PRASHAD

JUDGEMENT

(1.) THE defendant Parshadi alias Ram Parshad executed a sale-deed of his zamindari in favour of the plaintiffs, on the 21 of June 1904. On the same date he executed another document relinquishing his rights as ex proprietary tenant in respect of his sir and khudkasht lands in favour of the plaintiffs for a consideration of Rs. 500. THE plaintiffs allegation was that the defendant surrendered possession to them and that they wore in possession of the sir and khudkasht lands from 1904 to 1907 Fasli, and that in 1907 Fasli the defendant dispossessed them. THEy brought the present suit for a refund of Rs. 500, the consideration for the second deed executed on the 21 of June 1904 and in the alternative for possession of the sir and khudkasht lands. THE Court of first instance found that Rs. 500 had boon paid by the plaintiffs to the defendant and made a decree in their favour for that amount with interest. From this decree both parties appealed. In their appeal the plaintiffs claimed possession of the land. In the defendant's appeal he disputed the correctness of the lower Court's finding as to the payment of Rs. 500. THE lower appellate Court decreed the defendant's appeal, holding that the payment of Rs. 500 had not been proved. As regards the plaintiffs appeal that Court was of opinion that although the plaintiffs had been put into possession this was with the consent of the defendant and, therefore, by reason of such possession the exproprietary rights of the defendant did not determine and the plaintiffs were not entitled to be put back into possession. From the two decrees passed by the Court below the plaintiffs have preferred this appeal and the connected appeal No. 80& of 1908. We are of opinion that this appeal must prevail and the claim for possession of the land in question must be decreed. THE learned Subordinate Judge overlooked the fact referred to in the judgment of the Court of first instance and shown by the record, that in 1905 the defendant-vendor filed an application in the Revenue Court stating that he had surrendered his exproprietary rights to the plaintiffs and asking that Court to enter the name of the plaintiffs in respect of his sir lands. On the 4 of August 1905 the defendant gave his deposition in the Revenue Court and stated that he had surrendered his exproprietary rights to the plaintiffs. No doubt upon the sale of the zamindari the defendant became an exproprietary tenant in respect of his sir land. After he became such tenant he was competent to surrender his holding in favour of the vendees who were his landlords. He surrendered his rights and put the plaintiffs into possession and the plaintiffs remained in possession until 1907. THE surrender of his exproprietary rights being valid in law, it was not competent to the defendant to resume possession by dispossessing the plaintiffs; as his exproprietary rights had determined by the surrender. THE plaintiffs are, therefore, entitled to be put back into possession. In this view it is immaterial whether the defendant received consideration for the relinquishment of his exproprietary rights. We, accordingly, allow the appeal, set aside the decree of the Court below in so far as it dismisses plaintiffs claim for possession and grant a decree to them for possession of the lands claimed. THE claim for damages is not pressed by the learned vakil for the appellant and is dismissed. Under the circumstances we direct the parties to pay their own costs in all Courts.