SUKHDEO PANDEYH Vs. RAMESHWAR PRASAD AGARWALA

JUDGEMENT

(1.) This appeal though valued at under Rs. 100 has given rise to a question of title and was referred to a Division Bench by the Single Judge before whom it at first came for hearing. The suit was instituted as a title suit, the prayers in the plaint being in the first instance to have a declaration that the land in suit is the kasht land of defendants 1 to 3 of which the rent is Rs. 24-3.6 plus cess; that the plaintiffs are landlords of this holding to the extent of 2/3rds share and are entitled to 2/3rds of the rent. The other 5 annas 4 pies cosharers are the defendants who are impleaded as pro forma defendants. In accordance with the declaration claimed above, the plaintiffs ask for a decree for the sum due, Rs. 72-14-0, against the defendants first party and defendants second party and for an order for recovery of costs from either defendants first party or defendants second party. The nature of the title set up by the parties will appear from the history of the land. The suit refers to plot No. 303 in khata No. 2 in tauzi No. 56 in village Nargada. Its area is 7 bighas 15 kathas and the rent as alleged by the plaintiffs is Rs. 24.3-6. The proprietors of this tauzi No. 56 were at one time three brothers Earn Autar, Bankey Behari and Radha Raman holding in equal 1/3 shares. Within it there was a bhauli holding of 23 bighas 16 kathas of one Mahant Ramgir. This included the rent claimed land. The holding was put to sale on 6 February 1904 and was purchased by Ramnagina and it was described as kasht land and delivery of possession was taken on 5 May 1904. Out of this, Ramnagina sold 11 bighas 16, kathas on 2 July, 1904 to Bisesarnath.

(2.) This area included the rent claimed land which is still described as kasht. The above Bisesarnath transferred 7 bighas 13 kathas out of his purchased land on 3rd January 1905 to Bankey Behari, one of the three proprietors. This 7 bighas 15 kathas is the exact area now in suit. The land was described as kasht land and it is stated that after this transfer its rent was commuted to nagdi rent at Rs. 24-3-6 and apparently it has been found by the Courts below that this was so. On 19 th May 1905, Bankey Behari gave this plot No. 303 in usufructuary mortgage to, one Basdeo as security for an advance of Rupees 2000. The land is still described as kasht land. Thereafter there was a dispute between the three proprietors resulting in an award dated 28 December 1908.

(3.) In pursuance of this award Bankey Behari sold the disputed plot, 7 bighas 15 kathas to Ram Autar, another of the three proprietors on 12 January 1909. The land is described as kasht land bearing a rent of Rs. 24-3-6. This acquisition by Eamautar must have been subject to the lien of Basdeo for his advance of Rs. 2000. On 23 October 1909 Eamautar raised a loan of Rs. 2995 from the defendant second party on a usufructuary mortgage of this same plot. Of the consideration, Rs. 2000 was left with defendants second party for payment to the previous creditor Basdeo and this was paid off. In this document the land is described as Ramautar's zerat land. The next event affecting the history of the land is the revisional survey record of rights prepared in 1911. Here the plot in question is shown in bakasht khata No. 2 of the proprietors and as belonging to Ramautar with defendants second party as rehandars in possession. Ramautar seems to have created a simple mortgage on his entire 5 annas 4 pies share in the tauzi. At any rate a mort. gage decree was obtained against him and in execution this entire share was put up to sale and was purchased on 12 May 1920 by Nand Bahadur, predecessor of defendants third party of the present suit. It is the case of the defendants second party who are appellants here that by this execution purchase defendants third party took along with the 5 annas 4 pies share in the milkiat all rights of Ramautar in this plot 303.