Khakhan Singh and Others vs Ram Ishwar Singh and Others

Fazl Ali, J.—This is a Letters Patent appeal from the decision of a learned Judge of this Court in a second appeal. The plaintiffs and the defendants are cosharer landlords in mauza Ramcharanpore Gorakhi and are admittedly in possession of specific plots of bakasht lands.

Some time ago the plaintiffs gave to the defendants H decimals of bakasht lands for building a zenana house, and on 2nd December 1985, the defendants executed a deed of exchange by which they declared the plaintiffs'' right to be in possession of 50� decimals of land in exchange for the land which they had previously given to the defendants. From the recitals in the deed it appears that out of 50� decimals of land there was a house on 3� decimals, and it was also stated in the deed that the claimant should enter into possession and occupation of the property given to him in exchange, bring it under his cultivation, take up his abode in the house and continue to enjoy the same for all time.

In 1937 the plaintiffs brought the suit which has given rise to this appeal, and in this suit they stated, among other things, that after the exchange (the transaction to which reference has already been made) the plaintiffs had let out the house standing on 3� decimals of land to the defendants on a monthly rent of Rs. 10 per month, and as the defendants had not paid the rent for the house they were compelled to bring the suit.

They accordingly asked for the following reliefs: (1) a decree for the arrears of rent, and (2) a decree for ejectment and mesne profits. The trial Court and the first appellate Court concurrently held that the story of the plaintiffs that they had let out the house on rent to the defendants was not true. Both these Courts also held that the plaintiffs were not entitled to any relief because the other cosharer landlords of the village had not been impleaded in the suit. The plaintiffs'' suit being dismissed, the plaintiffs preferred a second appeal to this Court; but the second appeal also was dismissed; hence this appeal under the Letters Patent.

Now, there is no doubt that there has been no partition of the village among the cosharer landlords by metes and bounds, but it is perfectly clear on the findings of the Courts below that the cosharers are in possession of specific plots of bakasht lands. As I have already stated, out of the lands in possession of the plaintiffs they have given 14 decimals to the defendants for building a zenana house, and it has been found by the first appellate Court that the defendants gave in exchange certain lands to them in lieu of the land which they had got. The deed of exchange is on the record, and it is clear from it that there was a house on 3� decimals of the land in possession of the defendants, and the defendants gave this house also to the plaintiffs.

The question is whether this transaction is binding upon the defendants or not. In my opinion, it is. It was nothing but a mutual arrangement between two landlords who were in possession of specific plots of bakasht land in the village. This arrangement may not be binding on the other cosharer landlords who were not parties to it and may be disregarded when there is a partition of the village by metes and bounds; but so long as the village is not partitioned, it must bind the plaintiffs as well as the defendants.

As I have already stated, the deed of exchange clearly states that the plaintiffs are entitled to be in possession of the house standing on 3� decimals of land. It is true that the plaintiffs'' story that they had let it out to the defendants on rent has been found to be untrue, and, therefore, their suit has been rightly dismissed in so far as their claim for the rent of the house is concerned; but there seems to be no reason why they should not be awarded a decree for the possession of the house standing on 3� decimals of land.

I would, therefore, allow this appeal, set aside the judgment of the learned Judge against which this appeal has been prefer, red and direct that a decree be passed in favour of the plaintiffs granting them possession in respect of 3� decimals of land on plots Nos. 2959 and 2960. As the plaintiffs'' case was that the defendants were lawfully in possession of the house as tenants, their claim for mesne profits must be disallowed, but they will be entitled to half the costs in all the Courts.

Harries C. J.

I agree.