Fakira Sahu and Another vs Babu Anoop Lal and Another and Dhako Singh and Others

Kulwant Sahay, J.—The plaintiffs are co-sharer-landlords to the extent of fourteen annas and odd, their interest feeing twelve annas as mukarraridars and proprietary interest in respect of the rest. The landlords of the remaining share are the, pro forma defendants in the suit. The suit was instituted to eject the defendants Nos. 1 and 2 who were purchasers of a holding which was originally held by two persons Durgi Singh and Dako Singh on the ground that there was no custom of transferability of occupancy holdings in the village without the consent of the landlord.

The defence was that there was no abandonment by the original tenants, that there was a custom of transferability of occupancy holdings without the consent of the landlord and" lastly, that there had been a recognition of the transferees by the landlords.

Both the Courts below have coma to a concurrent finding of fact that the original tenants did actually abandon the disputed holding, that there was no custom of transferability of occupancy holdings and that there had been no recognition.

In this second appeal by the transferee-defendants it is contended that the learned District Judge was wrong in holding that there was no evidence to show how the purchasers under certain kobalas produced to prove the custom of transferability got themselves recognised. Sir Ali Imam on. behalf of the appellants contends that there are documents to show that the purchasers under those kobalas did get themselves recognized by the landlords and he refers to certain khatians which show the purchasers as the holders of the holdings purchased by them. What the learned Judge, however, meant to say was that the circumstances under which the transferees were recognized had not been shown. It was possible that they might have been recognized on payment of soma salami or by some other means. In order to prove the custom o� transferability it was essential for the defendants to show that they had a right to be recognized by the landlord after purchasing the holdings without, the consent of the landlord. This has not been done in the present case.

The next point taken was as regards recognition. It appears that one Musammat Nem Kueri was in possession of the twelve-annas share of the village for some time. She instituted suits for rent in the year 1914 against the original tenants Durgi Singh and Dako Singh and obtained rent-decrees on the 10th February, 1915, and in execution of the decree the holding was sold and purchased by her. It appears, however, that on the 10th November, 1915, Nem Kueri filed an application certifying payment of the entire decretal amount by the present defendants-appellants as purchasers of the holding, and it is contended that this amounted to a recognition of the transfer to the present appellants by Nem Kueri and that the plaintiffs-respondents are bound by that recognition. It has been found by both the Courts below that before the date of this recognition the interest of Nem Kueri had ceased to exist. It is true that the learned Subordinate Judge found that in spite of her interest ceasing she was still in possession; but before the filing of this petition on the 10th November, 1915, a suit had already been instituted against her by Audhbehari on the 15th September, 1915, claiming the twelve-annas as mukarrari right and this suit was ultimately decreed in favour of Audhbehari. The present plaintiffs are the purchasers of the interest of Audhbehari, Under the circumstances even if the application of the 10th November, 1915, be treated as an application which would amount to a recognition of the appellants, such recognition would not be binding on Audhbehari or on the plaintiffs who are the representatives of Audhbehari. In any, event the plaintiffs are not bound by the recognition in respect of the proprietary interest which they possess over and above the twelve-annas mukarrari interest.

Having regard to the findings of fact arrived by the learned District Judge, it is clear that there is no substance in this appeal. The appeal must, therefore, be dismissed with costs.

Macpherson, J.

I agree.