GAJADHAR Vs. SETH MEGHRAJ

JUDGEMENT

(1.) THIS second appeal arises a very nice question of law. The facts of the case may shortly be stated as under: One Nanheylal was a tenant holding lands in the villages of Rukwara in the Narsinghpur District and Chandana in in the Saugor District. He had five sons, 1 Bansidhar, 2 Rajaram, 3 Jankiprasad, 4 Choteylal and 5 Gajadhar. The plaintiff's case was that even during the lifetime of Nanheylal, Gajadhar had separated from his father and brothers in 1913 and got for his share the fields in the Saugor District and that he lived and enjoyed these fields as his separate property while the fields in the Narsinghpur District remained with the father and the other sons as their separate property, although until the death of Nanheylal in 1918 all the fields in both the districts were recorded in the revenue papers as the holding of Nanheylal.

(2.) THE plaintiff alleged that on 11th June 1925 the four brothers other than Gajadhar who were the real tenants of the fields in the village of Rukwara, of which he is the landlord, surrendered them to him in consideration of the debt of Rs. 3,587-11-6, but that in the current settlement which was announced in 1926 these fields came to be recorded as the occupancy holding of all the five sons of Nanheylal. The plaintiffs, therefore, brought the suit, out of which this second appeal arises, in the Court of the Subordinate, Judge First Class, Narsinghpur, for a declaration that the settlement entry was wrong and that the fields should be recorded as his khudkast by virtue of the aforesaid surrender. All the five sons of Nanheylal were made defendants to the suit.

(3.) AGAINST this decree the plaintiff preferred an appeal to the District Judge, Jubbulpore, contending that the finding as to partition should have been in his favour, that it should have been held that the defendant Gajadhar had abandoned the holding and was not a tenant thereof at the date of the surrender, and that therefore the surrender operated upon the entire holding. Gajadhar, who was the sole respondent to the appeal, filed cross-objections contending that the surrender by four out of the five tenants was void even to the extent of their undefined shares in the holding and that therefore he alone was the sole tenant of the holding. On plaintiff's appeal the learned District Judge held that the partition set up by the plaintiff was not proved, but that for the convenience of management Gajadhar was put in sole charge of the fields in the Saugor District while the rest of the members of the joint family remained in charge of the Rukwara fields. It was also held that on the death of Nanheylal all the five brothers became joint tenants of all the fields situate in both the districts and that at the date of surrender Gajadhar defendant was a joint tenant of the surrendered fields.