MUHAMMAD AKBAR Vs. SYED ALT SAJJAD

JUDGEMENT

(1.) The judgment of the lower appellate Court is very confused, and the trial Court has gone off at a tangent and decided about a matter which was not properly fixed in the issues. The plaintiffs sued for a declaration that they were owners of superior proprietary rights in a certain village known as Peshkashi Bhadi; that their share of such proprietary interest was one-half; that the revenue was Rs. 52-5-0, and that they were entitled to recover Rs. 26-10-6 from the defendants who were inferior proprietors. The defence was that the defendants were such proprietors along with the plaintiffs, and that the plaintiffs ware not entitled to recover any money from them because of an arrangement under which the plaintiffs forbore to recover rent from the defendants in this village in pursuance of the defendants forbearing to recover rent from the plaintiffs in another village. The final defence was really one of payment and did not in any way interfere with the plaintiffs rights. The defendants admitted that the plaintiffs were owners of one-fourth of the superior proprietor's rights and that they themselves were inferior proprietors of this particular village. The trial Court held that the plaintiffs were owners of one-fourth, and not one-half, of the superior proprietor's rights, and that the defendants also were superior proprietors. Issue 1 was to the following effect:

(2.) Whether defendants 1 to 8 and 10 are also superior proprietors of the property in suit?

(3.) This issue was answered in the affirmative. The defendants being superior proprietors did not prevent the plaintiffs from being superior proprietors also. There was no issue as to whether the plaintiffs should be deprived of the declaration as to their rights as superior proprietors for any reason. At the end of the judgment the trial Court refused to grant a declaration on the ground of mutual agreement between the parties under which the plaintiff had agreed not to recover their share of the rent from the defendants under-proprietors. I am afraid that I am unable to understand what the lower appellate Court has decided. There is a specific finding in favour of the plaintiffs of the trial Court that the suit is not barred under Arts. 142 and 144, Lim. Act. The lower appellate Court would seem to think that the suit is so barred because the plaintiffs had not recovered rent from the defendants for a long term of years. If there is any such finding it may be disregarded as being based on ignorance and insufficient knowledge of the pleadings of the parties.