LAWS(PVC)-1929-2-183

HANS RAJ Vs. SURJA

Decided On February 11, 1929
HANS RAJ Appellant
V/S
SURJA Respondents

JUDGEMENT

(1.) This second appeal arises out of a suit brought by Hansraj, plaintiff-appellant, against his cousins for damages in respect of a certain 5 bighas 1 biswa, 6 biswansis of a tenancy holding which the defendants are said to have cultivated over and above the area in the holding to the possession of which they are entitled. The plaint set forth that one Madho Singh had three sons, and that the plaintiff was the son of Sheo Sahai. The other defendants were sons of Ganga Bakhsh and Har Bakhsh. It went on to say that there was an occupancy holding belonging to all three brothers, that the plaintiff inherited his father's rights as a co-tenant and as such was entitled to be in possession or to enjoy the profits of 18 bighas 7 biswas and 7 biswansis, whereas he had only been allowed to cultivate 13 bighas 6 biswas. He, therefore, asked for a sum of Rs. 355 as remuneration for three years in respect of the land in the possession of the defendants. The suit was resisted on the ground that Madho Singh had five sons, not only three, and that the occupancy tenancy was acquired by all the five brothers. Of these five brothers Sheo Sahai was separate, but the other four brothers formed two and not four units inasmuch as the second brother was joint with the fourth and the third with the fifth. Hence when Sheo Sahai died the plaintiff got a one-third share, but he got nothing else when two of the three brothers died without issue, these two brothers share going to the two brothers with whom they were respectively united.

(2.) The trial Court accepted the plaintiff's contention and decreed damages but not to the amount claimed. In appeal to the Subordinate Judge the latter came to a finding that there were five brothers, and on this finding held that the plaintiff was only entitled to a one-fifth share of the tenancy. He relied on the oral evidence of the defendants, supported as it was to some extent by a khatauni, to which he referred although the document was not produced as evidence in the trial Court.

(3.) In this second appeal the first point taken is that the lower appellate Court was not entitled to take the khatauni of 1859 as evidence without recording reasons thereof. This objection, in my opinion, fails. It was not a case of the Court accepting evidence filed in the appellate Court by the defendants, but it appears that the trial Court itself chose to refer to the khatauni. Any way the question whether the Court was justified in using the khatauni has no importance in view of my findings below.