TULSHI RAM Vs. GOBIND SINGH

JUDGEMENT

(1.) The suit which has given rise to this appeal was brought by the appellants for possession of certain zamindari property situated in different khewats, mahals and pattis of four villages. The Court below has dismissed the suit. The material facts, about which there is no serious controversy, are these. One Natha Earn had two sons, Dharajit and Churaman. Dharajit's son is the defendant-respondent, Gobind Singh. Churaman had a son, Earn Prasad, and three daughters, Jiva Kunwar, Karai Kunwar and Chunni Kunwar. The property in dispute belonged to Earn Prasad. The two plaintiffs-appellants are the sons of his sister Jiva Kunwar. The son of another sister of his, namely Karai Kunwar, is Tikam Singh. Chunni Kunwar has left no children. Earn Prasad died in June 1894 without any male issue, leaving two widows Mt. Parbati and Mt. Inchha Kunwar, surviving. It is common ground that the property in dispute was entered in the name of Earn Prasad as long as he was alive and that on his death it was entered in the name of his widows, Mt. Parbati and Mt. Inchha Kunwar, and that the widows entered into possession. Mt. Parbati died first and on her death Mt. Inchha Kunwar alone remained in possession of the property. She died on 27 June 1932. The three sisters of Ram Prasad had predeceased Mt. Inchha Kunwar. On Inchha Kunwar's death the patwari made a report to the revenue authorities that the name of Gobind Singh should be entered over the zamindari properties of which Mt. Inchha Kunwar had been in possession by succession to her husband, Earn Prasad. Objections were filed to this report by three sets of persons. One objection was by the sister's sons of Ram Prasad, namely the present plaintiffs-appellants, Tulshi Ram and Murli Singh, and Tikam Singh. Another objection was filed by one Nand Ram and a third objection was by a man called Behari Singh. Nand Ram and Behari Singh were relatives of the family. We are however not concerned with the objections of Nand Ram and Behari Singh in this appeal. Their objections were dismissed and no further question arises about them.

(2.) After the report made by the patwari, Gobind Singh also applied for mutation of his name. Gobind Singh, judging from his deposition in the present suit, seems to have claimed mutation on the basis that he had been in possession along with the widows of Earn Prasad, Mt. Parbati and Mt. Inchha Kunwar. The objections of Tul. shi Earn, Murli Singh and Tikam Singh were to the effect that they, being the sons of the sisters of Earn Prasad, were heirs and Gobind Singh had no right to have his name entered. By an application dated 15 August 1932 the parties to this mutation case referred the dispute that had arisen among them to the arbitration of three persons. On 4 September 1932 a joint application was filed before the arbitrators by Tulshi Ram, Murli Singh, Tikam Singh and Gobind Singh stating that they had come to a settlement among themselves and that the names of Tulshi ram and Murli Singh be entered against one-third of the property left by Earn Prasad, that the name of Tikam Singh be entered against another one-third, and that the name of Gobind Singh be entered against the remaining one-third. The same day the arbitrators delivered an award dismissing the objections of Behari Singh and Nand Earn and deciding the dispute that existed between Tulshi Ram, Murli Singh and Tikam Singh, on the one hand, and Gobind Singh, on the other, in terms of the application which had been filed by these persons before them, i.e. they directed that the names of Tulshi Ram and Murli Singh be entered against one-third of the property, the name of Tikam Singh be entered against another one-third, and the name of Gobind Singh be entered against the remaining one-third. The mutation Court, by an order dated 16 September 1932, accepted this award, rejecting such objections to it as had been filed, and directed that the name of Tulshi Ram, Murli Singh, Tikam Singh and Gobind Singh be entered as mentioned in the award. Mutation was effected accordingly and the parties entered into possession over their respective one-third shares.

(3.) The present suit was raised by Tulshi Ram and Murli Singh in 1936 against Gobind Singh. The substance of their allegations in the plaint is that Earn Prasad was a separated Hindu and was the last male holder of the property, that under the Hindu law, as amended by Act 2 of 1929, they, along with Tikam Singh, being the sons of the deceased sisters of Earn Prasad, were entitled to succeed to the whole property of Earn Prasad and that Gobind Singh had no right or title to any share in that property. They pleaded that the settlement in the mutation case could not affect their title and that "the decision of the Be-venue Court in the mutation case and the-settlement aforesaid are totally null and void and ineffectual and are not at all binding on the plaintiffs." They stated that each of the three nephews of Earn Prasad was entitled to a one-third share, that is Tulshi ram to one-third, Murli Singh to one-third and Tikam Singh to one-third. They alleged that Tikam Singh being in possession of a one-third share in the property, they were entitled to the remaining, two-thirds. As they were in possession of only one- third they brought the suit for possession of the remaining one-third, which, they stated was in possession of the defendant Gobind Singh. There was also a prayer for the recovery of a sum of money as mesne-profits. The main contentions of the defendant, Gobind Singh, in his written statement were that the plaintiffs and the defendant had " made a settlement by way of a family arrangement and had it verified before the arbitrators" and that mutation of names having been made in accordance with that family arrangement, the plaintiffs were not entitled to sue. It was pleaded that Section 53-A, T.P. Act, barred the suit. There was also a plea to the effect that the suit was barred by the provisions of Section 233(k), U.P. Land Revenue Act.