MT AJAIB Vs. NOOR KHAN

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for recovery of possession of four plots of land and Rs. 156 as mesne profits.

(2.) Nur Khan, Ismail Khan and Mustaqim the three plaintiffs and one Wazira were the joint occupancy tenants of a certain holding which included the four plots in dispute. By a mutual partition, the four plots were allotted by the plaintiffs to Wazira, and Wazira was in cultivatory possession of the same. Wazira died six years before suit leaving a grandson Sikandar. Sikandar died a month after Wazira. Mt. Ajaib, the defendant, is now in possession of this property. She applied to the revenue Court for the entry of her name in the rent roll and her name was recorded with the consent of the plaintiffs. The plaintiffs are no longer desirous that the name of Mt. Ajaib should continue to remain recorded in the jamabandi and applied for the removal of her name from the revenue record. The application was rejected by the revenue Court and the plaintiffs were referred to a civil suit. The suit was resisted upon the ground that the 4 plots in dispute constituted the occupancy holding of Wazira and that upon the death of Wazira and his grandson Sikandar, no title accrued to the plaintiffs under the law of possession under Section 22, Agra Tenancy Act (Act 2 of 1901): The defendant also contended that under a compromise entered into between the parties the defendant was put into possession of property and the plaintiffs were not competent to go behind the compromise. The Court of first instance overruled the pleas taken in defence and decreed the plaintiffs suit. The lower appellate Court reversed the decision and dismissed the plaintiffs suit on the grounds that the plots in question had been allotted on partition by the plaintiffs to Wazira, that under Section 22, Agra Tenancy Act, the plaintiffs were no heirs either to Wazira or to his grandson Sikandar, that the plaintiffs had allowed the defendant to remain in possession of this property under a compromise and that the compromise did not operate as an estoppel but it would be inequitable to allow the plaintiffs to go behind the compromise. On second appeal a learned Judge of this Court has reversed the decision of the lower appellate Court and restored that of the trial Court. We are satisfied that the judgment under appeal is a correct judgment and ought not to be interfered with.

(3.) The partition effected between the plaintiffs and Wazira was merely for facility or convenience in the matter of cultivation. The occupancy tenants by mutual agreement could not create a division or partition of an occupancy holding without the consent of the zamindar. Notwithstanding the partition, the liability of the plaintiffs for the rent of the entire holding including the rent of the 4 plots in dispute continued. Upon the death of Wazira or Sikandar, the plaintiffs became the sole tenants of thus property by rule of survivorship.