Bujhai Rai and Others vs Ram Sevak Pandey and Others

Fazl Ali, J.—This is an appeal from a decision of the District Judge of Saran reversing a decision of the Munsif of Chapra. It appears that the plaintiffs had a holding of about 6 bighas odd which included a plot of land with a number of mango and mahua trees upon it. This plot was entered in the survey khatian as the raiyati land of the plaintiffs but it was noted in the remark column that the plaintiffs and the defendant were entitled to a half share each in the trees.

In the suit that was brought by the plaintiffs it was alleged by them that the defendants were the watchmen of the orchard, the arrangement between them and the plaintiffs being that the former would appropriate half the produce of the trees. The defendants, however, appropriated the entire produce and so the plaintiffs had to bring the suit claiming their half share of the produce from the defendants.

The first Court dismissed the suit holding that there was no relationship of landlord and tenant between the plaintiffs and the defendants. The lower appellate Court, however, reversed this decision and gave the plaintiffs a decree for a portion of the claim.

Now, the principal argument advanced by the learned advocate for the appellants is that the lower appellate Court has in deciding the case virtually ignored the survey entry and has in fact decided the case against that entry. Now, in plain language the argument amounts simply to this that the lower appellate Court has misconstrued the Record-of-Rights in this case. It may be mentioned here that the survey Record-of-Rights is after all a piece of evidence in the case though it must be conceded that it is an important piece of evidence. That being so, it cannot be urged that the lower appellate Court was debarred from drawing such inference as it thought proper from this piece of evidence and that this Court should interfere with the decision in second appeal, only because the learned advocate for the appellant considers the construction to be wrong. The learned advocate for the appellant, however, argues that the lower appellate Court has more than misconstrued the entry and that in fact it has gone against the entry. It is also contended that the lower appellate Court has decided the case irrespective of all the other evidence in the case and that that is an additional ground on which his judgment is open to criticism.

Now, so far as the latter contention is concerned I am not prepared te accept it because there is ample indication in the judgment of the learned District Judge that he had perused the evidence in the case and drawn upon it for the purpose of deciding this case. The following passage in the judgment will, make it clear that the learned District Judge had the evidence in the case fully before his mind in deciding the case.

The defendants had no manner of interest in the land, they were not gotras of the plaintiffs nor in any manner related to them. The-parties were Bhumihars of different gotras; it was not even suggested that the defendants or their ancestors had anything to do with the planting of the trees or the payment of the maliks'' rent for the holding of the particular plot.

All these facts were apparently gathered by the learned District Judge from the evidence adduced in the case other than the khatian and I cannot therefore, hold that the lower appellate Court has decided the case wholly upon the Record-of-Rights and not upon any other evidence. As to the next contention that the learned District Judge has gone against the khatian entry, I am not at all in agreement with the learned advocate for the appellant because in my judgment the khatian entry is by no means inconsistent with the theory advanced by the plaintiff which has been, accepted by the learned District Judge.

The next point urged was that the learned District Judge having rejected the evidence adduced on behalf of the; plaintiff as to the yield from the trees should not have decreed the suit accepting an arbitrary figure. What I find in the judgment is that the learned District. Judge has held that the figures supplied by the plaintiff were too high and those supplied by the defendants were too low and I do not find that the figure arrived at by the lower appellate Court is unreasonable, The appeal therefore fails and is dismissed with costs.