Tikait Srinibas Hukum Singh Deo vs Lal Narain Singh and Others

Wort, Ag. C.J.

This is the plaintiff''s appeal in an action to resume an estate which has been held by the Judges in the Courts below to be permanent mukarrari. Mr. Sinha who appears on behalf of the plaintiff-appellant contends that the question whether it is a permanent or a life estate is to be determined on the proper, construction to be placed on the patta of 1882. The original grantee, it appears, had taken possession of certain parti lands for the purpose of bringing them under cultivation and then in 1882 this grant was made by the Raja to that person, the grant including not only the lands thus reclaimed but the whole of the village being of a very considerable area. The subsequent history of ''the matter was this, that the original grantee assigned his interest in the greater part of the village to the ancestor of defendant 1, but retained for himself 124 acres which was the land he had reclaimed. Then there was a subsequent transfer of a part of those 124 acres that is to say about 110 acres, to defendant 5. The history of the relationship of those assignees is different. As regards defendant 5 who is the assignee of 110 acres he paid no rent to the original landlord. It cannot be said therefore that there was any new contract or lease with the original grantor. His rights therefore are governed by the patta of 1882 and I do not think there was any serious dispute that on the proper construction of that grant the estate which was given to the original grantee was a life estate only. So far as that part of the case is concerned, that is to say as regards 110 acres, the decisions of the learned Judges in the Courts below were erroneous. Their decisions were based on the evidence in the case, particularly the Record of Rights. But when once it is determined that the relationship between the parties was governed by the original patta of 1882 the matter is a very simple one and the solution is the one which I have just stated.

So far as the greater part of the village is concerned, and which was assigned to the ancestor of defendant 1, the matter is entirely different. The original patta was in the early part of 1882 and the assignment to the ancestor of defendant 1 was in August 1882, whereupon the original grantor accepted defendant 1 was ancestor as a tenant and accepted rent. He was not bound to do so, but by doing so he created a new tenancy or a lease. On the facts and circumstances of the case, as I have already indicated, the learned Judges in the Court below have come to the conclusion that the interest there was a permanent interest. It is true, that in the rent receipt the word mukarrari was used which does not necessarily imply anything more than a life estate; but there were facts and circumstances which were taken into consideration amongst which was the Record of Rights. The khewat was prepared in 1908 and the final publication some years later.

In both of them the interest which the ancestor of defendant 1 or defendant 1 was stated to have possessed was a permanent interest and not a life estate only. The learned Judge therefore was right in coming to the conclusion that so far as defendant 1 or his'' ancestor was concerned, the estate which he possessed was, as I have said, a life estate. The Record of Rights being in no way rebutted by the document of 1882 it stands to reason that the relationship between the original grantor and defendant 1 is not governed thereby.

For these circumstances the appeal so far as it concerns 110 acres, i.e. the interest of defendant 5 is allowed and the suit decreed in favour of the plaintiff, but dismissed as regards the balance.

I should have observed that the considerations which apply to 110 acres necessarily apply to the balance being 14 acres and therefore the plaintiff''s suit should be decreed for 124 acres. To make the matter clear, the Appeal No. 973 is allowed with costs throughout and the Appeal No. 972 is dismissed with costs.

Manohar Lall J.

I agree.