Patna High Court
Muna Kuar And Ors. vs Lala Prasad Singh And Ors. on 21 May, 1969
Equivalent citations: AIR1970PAT219, AIR 1970 PATNA 219
JUDGMENT B.D. Singh, J.
1. This appeal was preferred by Bacha Singh and others who were some of the members of the defendants first party in the trial Court. After the appeal was filed, Bacha Singh appellant No. 1 died and in his place Mossomat Muna Kuer was substituted as his legal heir. Title Suit No. 44/18 of 1952/58 which has given rise to this appeal, was institut-
ed by Lala Prasad Singh and his minor son Lachml Narain Singh impleading as many as 17 defendants. Defendant Nos. 1 to 12 were made defendants first party and Chandradeo Singh, Satnarain Singh son of Sitaram Singh, Rambharosi Singh son of Chandradeo Singh and Sheo Shankar Singh, son of Badri Narain Singh, defendants 13, 13 (a), 13 (b) and 14 respectively, were made defendants second party; whereas Choudhary Raj Rajeshwar Prasad Singh, Dr. Rameshwar Prasad and Umesh-war Prasad Singh, both sons of Choudhary Raj Rajeshwar Prasad Singh were arrayed as defendants 15, 16 and 17 respectively, constituting defendants third party.
The suit was for declaration that the plaintiffs have got eight annas share in the lands comprised in plot Nos. 894 (portion), 895, 896, 897, 898, 920 and 930, fully described under Schedule A of the plaint and for recovery of possession to the extent of their share from the defendants first party. The plaintiffs also claimed mesne profits with respect to the land from the year, 1357 fasli, corresponding to 1950, till the recovery of the possession of land and they further claimed Rs. 2,778 from the defendants first party, being the proportionate amount of sale proceeds, which was deposited in the Court during the pendency of case under Section 145 of the Code of Criminal Procedure, which was withdrawn by defendants first party.
It may be noted that the plaintiffs' co-sharer for the other eight annas share in the aforesaid plots is Choudhary Raj Rajeshwar Prasad Singh, defendant No. 15, being brother of Lala Prasad Singh, plaintiff No. 1 (both being sons of Choudhary Sant Saran Prasad Singh, deceased). Therefore, Choudhary Raj Rajeshwar along with his sons filed another suit being Title suit No. 46/12 of 1952/58 for a similar declaration with respect to their eight annas share in the aforesaid plots and they also claimed mesne profits and claimed half of the sale proceeds deposited in the Court during the pendency of the proceeding under Section 145 of the Code of Criminal Procedure, which was withdrawn by defendants first party. The plaintiffs of title Suit No. 44 were made defendants second party in Title Suit No. 46. Defendants first party were common In both the suits, against whom the main reliefs were sought. Chandradewa Singh and others defendants second party in suit No. 44 were settlees at one time, of the disputed land. Hence, they were made parties in the suits, but no relief was claimed against them. Both suits were made analogous and were, tried together. The claim of the plaintiffs in both the suits was that the lands comprised under plot Nos. 894 to 898 were Zirat and Khudkasht lands and have been coming in possession of the ancestors of the plaintiffs and their co-
sharers, for more than 12 years continuously before the passing of the Bihar Tenancy Act, 1885; in other words, since the time of permanent settlement. Their further case was that their lands were wrongly recorded as bakasht in the re-cord of rights. Their case, as regards plot Nos. 920 and 930 was that those lands were given in maintenance to Mossomat Domno Kumari, Parekhno Kumar and Bhonda Singh, who were the relatives of the plaintiffs. After their death, the plaintiffs and their co-sharers got those lands. On Civil Court partition, the lands under those two plots also were allotted to the share of the plaintiffs No. 1 of both suits. Therefore, the plaintiffs asserted that the lands under those two plots also were the zirat lands.
2. On the other hand, the case of the defendants first party in both the suits, in brief was that the lands covered under all the aforesaid plots were rightly recorded as bakasht in the record of rights, and they alleged in their written statement that they were raiyati lands before the last survey operation, and before the passing of the Bihar Tenancy Act but the landlords somehow or other came in possession of those raiyati lands, and got them recorded as bakasht.
3. On the pleadings of the contesting parties in both the suits various common issues were framed. Of them, only the following need be mentioned:--
1. Are the suits barred by limitation and multifariousness of cause of action?
2. Whether the suit lands are proprietors' private lands of the plaintiffs or whether the lands in suits are bakasht lands?
3. Whether the defendants first party have right of occupancy in the lands in suits?
4. Whether the settlements In the name of Shiva Shanker Singh alias Dahu Singh and Sita Ram Singh with respect to the lands in suits were in favour of defendants first party?
5. Whether the plaintiffs are entitled to get a decree for declaration of title and recovery of possession and mesne profits as prayed for? 4. The parties adduced oral and documentary evidence in support of their respective cases. After considering the evidence on the record, the trial Court held that (a) the lands under plot Nos. 895 to 897 are proprietors' private land and the survey entries showing these lands as bakasht are incorrect; (b) defendants first party have not acquired occupancy right in three plots, namely, plots 895, 896 and 897; (c) plaintiffs have title over lands in plot Nos. 895, 896, 897 and 894; (d) plaintiffs are entitled to mesne profits; (e) plaintiffs' suits are not barred by limita-
tion (f) the case of oral settlement of defendants first party is false; (g) lands under plot Nos. 894, 898, 920 and 930 are not proprietors' private lands, but they are bakasht lands; (h) defendants first party being settled raiyats of the village have acquired occupancy right over the lands under plot Nos. 920 and 930, but they have not acquired any title in respect of lands in plot No. 894; (i) defendants first party are using portion of the suit land in plot No. 898, as their Bari and they were inducted by plaintiffs on the lands in plot No. 898; (j) Dahu and Sitaram were not real settlement holders but were bena-midars of defendants first party with respect to the suit land (k) defendants first party are coming in possession of the disputed land since 1935; (1) plaintiffs of either suit were not in possession of lands under dispute; (m) plaintiffs have failed to prove the possession of Dahu and Sitaram from 1935 to 1942 and thereafter plaintiffs own possession; and (n) plaintiffs are not in possession after the expiry of kabuliat in 1942.
5. Thus both the suits were decreed in part as mentioned above against the defendants first party. Being aggrieved, the defendants first party filed two separate appeals against the judgment and decree of the Court below, one being the present one, namely. First Appeal 430 of 1959 which was placed before us for disposal, and the other being first Appeal No. 431 of 1959 which, was placed before another Bench of this Court presided over by Mahapatra and S.N.P. Singh, JJ. which was disposed of on 11-5-1966 as per terms of compromise entered between defendants first party and Choudhari Raj Rajeshwar Prasad and others, plaintiffs of Title Suit No. 46. Therefore, at the initial stage of the hearing, we gave sufficient opportunities to the contesting parties of this appeal also to come to some settlement. But learned counsel for the parties could not succeed in persuading them to patch up their differences. Learned counsel for the appellants submitted that Lala Prasad Singh and another, plaintiffs-respondents first party, had also filed cross objection against the findings of the Court below which were against them, and the same was dismissed on 20-3-68, due to their default. Therefore, now the dispute between the parties centres round only with regard to the land comprised in the four plots, namely, 894 to 896 & 897 appertaining to tauzi No. 656, situated in Badh Dudhela in village Hajipur Kusmaut, district Muzaffarpur. The total area of lands under all these plots comes to 54 bighas 10 kathas and 1 dhur. Since plaintiffs-respondents have only eight annas share, we are concerned with the dispute in this appeal only with regard to lands measuring 27 bighas and odd.
6. Learned counsel for the appellants assailed the findings of the Court below which were against them, and raised the following points for consideration by this Court-
(i) The suit is barred by limitation provided under the Bihar Tenancy Act as well as under the Limitation Act.
(ii) The lands comprised under the three plots, namely, 895, 896 and 897 were the raiyati lands of the defen-dants first party.
(iii) The plaintiffs have failed to establish that the lands comprised in the aforesaid three plots were their zirat lands or proprietors' private land.
(iv) Even if it was their zirat land the defendants first party have acquired occupancy right or at least they have become non-occupancy raiyats after the expiry of the lease.
(v) Even if it is held that those lands were proprietors' private land, the plaintiffs not being in possession at the time of the vesting under the Land Reforms Act, the same has vested in the State of Bihar under the said Act.
7. Before I take up for consideration the above points raised by learned counsel, it will be appropriate to dispose of the preliminary points, which have been vigorously argued by Mr. R.S. Chatterji, learned counsel for the plaintiffs-respondents. He submitted that the present appeal is barred by the principles of res judicata. He urged that the lands under the plots in dispute are not divided by metes and bounds between the plaintiffs-respondents of this appeal, and Choudhary Raj Rajeshwar Prasad Singh and others who were plaintiffs-respondents in the other appeal, viz. First Appeal 431. Admittedly the plaintiffs of the each suit have eight annas share. First Appeal No. 430 has arisen out of Title suit No. 44 whereas First Appeal No. 431 arose out of Title suit No. 46. Both these suits were heard together and they were disposed of by one judgment by the Court below. Common issues were framed, and the findings given by the Court below govern both the suits. The defendants first party are the appellants in both the appeals. Learned counsel has drawn our attention to the compromise petition filed in First Appeal 431 of 1959 on behalf of the defendants first party-appellants, and on behalf of Choudhary Raj Rajeshwar Prasad and others plaintiff-respondents. By the said compromise they agreed inter alia that "the entire lands which are the subject-matter of the suit will be divided half and half between the plaintiff-respondents Nos. 1 to 3 on the one hand and the defendant-appellants on the other, that is to say,-/8/- eight annas will go and belong absolutely to the plaintiff-respondent Nos. 1 to 3 to which the defendant-appellants or their heirs or assigns shall have no manner of claim whatsoever and -/8/-eight annas will go and belong absolutely to the defendant-appellants to which the plaintiff respondents or their heirs or assigns shall have no manner of claim whatsoever."
The compromise was recorded by order dated 11-5-1966. He submitted that Lala Prasad Singh and another, plaintiffs-respondents of First Appeal No. 430 of 1959, were also respondents 6 and 7 termed as respondents second party in First Appeal No. 431 of 1959, being co-sharers, but they did not appear in that appeal. Their Lordships, therefore, while recording the order on the said compromise petition observed:
"Learned counsel for the appellants wants that the appeal will stand dismissed as against respondents 6 and 7 who are pro forma defendants second party in the trial Court."
The other relevant portion of the order to which our attention was drawn was "Let the compromise be recorded and the appeal be disposed of in terms thereof."
Learned counsel submitted that since the appeal stood dismissed against respondents 6 and 7 who are plaintiff-respondents in the present appeal, namely. First Appeal No. 430 of 1959, it clearly amounts to confirmation of the finding of the Court below, so far these plaintiff-respondents are concerned, and now that finding cannot be modified by this appeal. In order to support his contention he relied on a decision of the Supreme Court in Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332. In that case the trial Court had decided on merit, four suits, namely, suit Nos. 37, 42, 77 and 91 of 1951, all of which had common issues. The appellant's father was aggrieved by these decrees. Consequently he filed two first appeals in the High Court of Allahabad. Appeal No. 365 of 1951 was against the dismissal of suit No. 37 while Appeal No. 366 of 1951 was against the dismissal of suit No. 42. He had also filed two appeals in the Court of the District Judge against the remaining two suits. Appeal No. 452 of 1951 was against the decree in suit No. 77, while Appeal No. 453 of 1951 was against the decree in suit No. 91. These two appeals which were pending in the Court of District Judge, were also transferred to the High Court. Thereafter Appeal No. 453 of 1951 arising out of suit No. 91 was dismissed by the High Court as being time barred, while Appeal No. 452 of 1951 arising out of suit No. 77 was dismissed by the High Court on the ground of failure of the appel-
lant's father to apply for translation and printing of the record as required by the rules of that High Court.
When the matter came up for hearing before the learned single iudge the following question, namely, "whether the appeal is barred by Section 11 of the Code of Civil Procedure or by the general principles of res judicata as the appeals against the decisions in suit Nos. 77 and 91 of 1951 were rejected and dismissed by this Court and those decisions have become final and binding between the parties", was referred to a Full Bench of that Court, which held that though there were four appeals originally before the High Court two of them had been dismissed and the very same issues which arose in First Appeal Nos. 365 and 366 had also arisen in those two appeals, which had been dismissed. It further found that the terms of Section 11 of the Code of Civil Procedure were fully applicable and, therefore, the two first appeals, Nos. 365 and 366, were barred by res iudicata to the extent of the decision of five issues which were common in the four connected appeals. After the decision of the Full Bench, the matter went back to the learned single Judge for decision. He dismissed the two appeals, Nos. 395 and 366, as barred by Section 11 of the Code of Civil Procedure. Aggrieved by the said judgment the appellant brought this matter to the Supreme Court. Their Lordships in paragraph 13 at page 1336-37 observed:
".....It is true that the High Court dismissed the appeals arising out of suits Nos. 77 and 91 either on the ground that it was barred by limitation or on the ground that steps had not been taken for printing the records. Even so the fact remains that the result of the dismissal of the two appeals arising from suits Nos. 77 and 91 by the High Court on these grounds was that the decrees of the Additional Civil Judge who decided the issue as to title on merits stood confirmed by the order of the High Court. In such a case, even though the order of the High Court may itself not be on the merits, the result of the High Court's decision is to confirm the decision on the issue of the title which had been given on the merits by the Additional Civil Judge and thus in effect the High Court confirmed the decree of the trial Court on the merits, whatever may be the reason for the dismissal of the appeals arising from suits Nos. 77 and 91....."
Their Lordships further observed:--
".....We cannot, therefore, accept the contention that even though the trial Court may have decided the matter on the merits there can be no res iudicata if the appeal Court dismisses the appeal on a preliminary ground without going into the merits, even though the result of the dismissal of the appeal by the ap-
peal Court is confirmation of the decision of the trial Court given on the merits. Acceptance of such a proposition will mean that all that the losing party has to do to destroy the effect of a decision given by the trial Court on the merits is to file an appeal and let that appeal be dismissed on some preliminary ground, with the result that the decision given on the merits also becomes useless as between the parties. We are therefore, of opinion that where a decision is given on the merits by the trial Court and the matter is taken in appeal and the appeal is dismissed on some preliminary around, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial Court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal."
Their Lordships further in paragraph 20 at page 1339 held:
".....The result of the dismissal on a preliminary ground of the two appeals arising out of suits Nos. 77 and 91 was that the decision of the trial Court was confirmed with respect to the common issues as to title by the High Court. In consequence the decision on those issues became res judicata so far as appeals Nos. 365 and 366 are concerned and Section 11 of the Code of Civil Procedure would bar the hearing of those common issues over again. It is not in dispute that if the decision on the common issues in suits Nos. 77 and 91 has become res judicata, appeals Nos. 365 and 366 must fail."
Learned Counsel further submitted that the very object of res iudicata is to avoid inconsistent decisions. He elaborated his contention by illustrating that in the instant case also since the lands under the plots in dispute are undivided and they are shared in equal proportion by the two sets of plaintiff-respondents first party in both the appeals, namely, First Appeal 430 of 1959 and first Appeal 431 of 1959, in view of the compromise decree in the latter, if the appeal in the former is allowed, there will be inconsistent decrees regarding the same subject-matter, and in this connection he referred to paragraph 17 of the same judgment of their Lordships, AIR 1966 SC 1332 (Supra) where their Lordships were considering the decision made in Obedur Rahman v. Darbari Lal, AIR 1927 Lah 1.
In that case there were five appeals before the High Court, three of which had abated. There was a common issue in all the five appeals, namely, whether a certain lease had expired or not and it was argued that in view of the abatement of the three other appeals, the decision of that issue had become res judicata. But their Lordships of the Lahore High Court overruled the contention by observing that "Where there has been an appeal the matter is no longer res iudicata but res sub judice and where an appeal is not finally heard and decided, any matters therein cannot possibly be said to be res judicata." Their Lordships of the Supreme Court held the view expressed as incorrect, and observed that if the view taken by the Lahore High Court was correct, the result would be that there may be inconsistent decisions on the same issue with respect to the point involved in that case namely, whether a certain lease had expired or not and the very object of res iudicata is to avoid inconsistent decisions. Their Lordships further observed that where, therefore, the result of the dismissal or abatement of an appeal is to confirm the decision of the trial Court on merit, such dismissal must amount to the appeal being heard and finally decided and would operate as res judicata.
In my opinion, the principles laid down by their Lordships of the Supreme Court are not applicable to the instant case, where we have to consider the effect of the compromise order passed in First Appeal 431 on the findings in Title Suit No. 44 against which the present appeal has been filed by the defendants first party, whereas their Lordships were dealing with the question where the appeals arising out of two suits were dismissed on some preliminary ground of limitation or default in printing and, therefore, it was held that such dismissal would amount to confirmation of the two other suits, namely, suits Nos. 37 and 42 against which appeals Nos. 365 and 366 were filed.
It is true that in the instant case also the two suits were tried together and there was common issue and the plaintiffs of both the suits being co-sharers had equal shares of eight annas each in the subject-matter of dispute. Although the land was not divided but they had well defined shares. In that view of the matter, it cannot be said that the subject-matter of the two suits were the same. Besides, their Lordships in First Appeal No. 431 were concerned with the share of the other co-sharers, namely, Choudhary Raj Rajeshwar Prasad and others, the respondents first party, who had only eight annas share in the subject-matter of dispute, and who had entered into the compromise with the defendants first party-appellants. According to one of the terms of the compromise quoted earlier, the properties of Choudhary Raj Rajeshwar Prasad and others are to be divided eaual-ly between them and the defendant-appellants. Another term is that the land in dispute shall be divided by metes and bounds by a pleader commissioner to be appointed by the Court below. The compromise is limited strictly to the eight annas share of Choudhari Raj Rajeshwar Prasad and others, the plaintiff-respondents first party of Appeal No. 431. In that view of the matter in my opinion, there will be no inconsistent decrees if this Appeal No. 430 is finally heard and decided on merit. Similarly, eight annas share of the plaintiff-respondents of this appeal can easily be carved out by appointing a pleader commissioner. Besides, in my opinion, the compromise order passed in First Appeal No. 431 does not result in confirmation of the decision of the trial Court given on merit in Title Suit No. 44, as their Lordships while recording the compromise in First Appeal 431 of 1959 only by way of recital in the order, mentioned that "learned counsel for the appellants wants that the appeal will stand dismissed as against respondents 6 and 7 who were pro forma defendants second party in the trial Court." It may be noticed that no specific order has been passed with regard to this. Learned counsel referred to the last portion of the order where it is mentioned that "let the compromise be recorded and the appeal be disposed of in terms thereof."
But, in my opinion, this also does not help the contention of learned counsel. Nowhere in the compromise petition it Is stated that the appeal should be ordered to be dismissed as against respondent Nos. 6 and 7 who were pro forma defendants. No such prayer has been made in the petition. No doubt, the plaintiff-respondents of this appeal were also respondents second party in First Appeal 431, but as mentioned earlier, although notice was served on them, they did not appear in that first appeal. From the records of the case, the pleadings of the parties and the judgment of the trial Court, it appears that the two sets of the plaintiffs were not pulling on well. There are allegations and counter-allegations between these two sets of plaintiffs that they were helping and instigating defendants first party as against the other. In that view of the matter the acceptance of the contention of the learned counsel, would amount to giving absolute power and discretion in the hands of Choudhary Raj Rajeshwar Prasad, the other co-sharer to affect the right and title of the plaintiff-respondents of this appeal by entering into compromise with the defendants first party-appellants.
8. Learned counsel further relied on a decision in the case of Kedar Nath Goenka v. Munshi Ram Narain Lal, AIR 1935 PC 139 where their Lordships of the Privy Council were dealing with res judicata between co-defendants. Their Lordships observed that in a former suit it was necessary to decide the dispute between the plaintiffs and defendants as to the validity of certain sale for the purpose of giving the plaintiff appropriate relief. In the subsequent suit, the same question as to the validity of the sale was again in issue between the same defendants, who were ranged as plaintiff and defendant 1, though the subject matter of this suit was different. Their Lordships held that the decision in the former suit was binding upon them and that issue was res judicata. In my opinion, this decision is not pertinent to the question in the instant case, first, because the plaintiff-respondents of the instant appeal, were pro forma plaintiff-respondents in the other appeal, as both were co-sharers. In the two suits also, the plaintiffs of one suit, were defendants in the other in the nature of pro forma, as no relief was sought against such defendants. As they were co-sharers they were simply made party to the suit. The most important point for consideration is that in order to attract res judicata as between co-defendants or co-respondents, there must be conflict of interest between them and it must be necessary to decide the conflict between the co-respondents in order to give the appellants the relief which they claimed. In the instant case, for recording the compromise it was neither necessary to decide nor was there any decision on the conflict of interest between the co-defendants or co-respondents. Learned counsel for the respondents also has not been able to point out that, when their Lordships were recording the compromise what was the occasion to decide the conflict of interest between the co-respondents of these two appeals to give relief which the defendants first party had claimed. In that view of the matter the decision reported in AIR 1935 PC 139 (supra) also does not lend support to the contention of learned counsel.
9. Learned counsel further referred to another decision of the Privy Council in Maung Sein Done v. Ma Pan Nyun, AIR 1932 PC 161 = 59 Ind App 247. In that case also their Lordships were dealing with the question of res judicata as between co-defendants. But, in my opinion, the principles laid down by their Lordships do not help the contention raised by learned counsel for the respondents. On the contrary, it helps the contention of learned counsel for the appellants, who has vehemently opposed the question of res judicata. Their Lordships in that case observed that if a plaintiff cannot get at his rights without trying, and deciding a case between co-defendants, the court will try and decide that case, and the co-defendants will be bound. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains. In the instant case, as observed above, it was not necessary for the court to decide the conflict between the co-respondents, when the compromise was recorded in order to give relief to the appellants, nor it was decided.
Learned counsel for the respondents, in order to resist this submitted that impliedly even in the instant case, it was necessary to decide the conflicts between the co-respondents in order to give relief to the defendants first party-appellants, while the compromise was being recorded as in the case reported in AIR 1932 PC 161. He has referred to page 164 of the judgment, where their Lordships observed that in a word, the question to be determined was one between the sisters on the one hand and the brothers on the other. The rights of each sister in regard to the mother's estate were identical. They were either both of them co-heirs with their brothers or neither of them was entitled to any share. Their Lordships observed that the decision that none of the sisters was entitled to inherit to their Chinese mother in a previous suit brought by A against her sister B and their two brothers had the effect of barring a subsequent suit, under the doctrine of res judicata brought by B against A and the two brothers claiming a share in the property of her mother.
But, in my opinion, the facts of the case which were before the Privy Council are clearly distinguishable from the facts of the instant case. Even by implication, it cannot be said that in the instant case it was necessary for the appellate Court to decide the conflict between the co-respondents of the two appeals by giving relief to defendants first party-appellants, viz., for recording the compromise.
10. Learned counsel for the appellants, on the other hand, as mentioned above, contended that no question of res judicata applies in the instant case and the compromise order recorded does not amount to confirmation of the findings of the court below. Mr. Lal Narayan Sinha, who appeared at the earlier stage for the appellants, relied on a decision of Privy Council in Mt. Munni Bibi v. Triloki Nath, AIR 1931 PC 114 = 58 Ind App 158 where their Lordships were dealing with the questions of res judicata between co-defendants and their Lordships at page 117 observed:--
".....The conditions under which this branch of the doctrine should be applied are thus stated by Wigram V.C., in Cottingham v. Earl of Shresbury, (1843) 3 Hare 627 = 15 LJ Ch 441 at p. 638"
'If a plaintiff cannot get at his right without trying and deciding a case between co-defendants the court will try and decide that case, and the co-defendants will be bound, but if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains'." This statement of the law has been accepted and followed in many Indian cases; see Ahmad Ali v. Najabat Khan, (1895) ILR 18 All 65 = 1895 All WN 156; Ramchandra Narayan v. Narayan Maha-dev, (1887) ILR 11 Bom 216, Magniram v. Mehdi Hossein Khan, (1904) ILR 31 Cal 95 = 8 Cal WN 30. It is, in their Lordships' opinion, in accord with the provisions of Section 11, Civil P.C. and they adopt it as the correct criterion in cases where it is sought to apply the rule of res judicata as between co-defendants. In such a case therefore three conditions are requisite: (1) There must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; and (3) the question between the defendants must have been finally decided."
Learned counsel for the respondents, however, contended that this decision also helps his contention that even if the plaintiff-respondent of the instant appeal did not appear in First Appeal 431, it makes no difference as they were necessary party to the suit, although no relief was sought against them. Besides, there was conflict of interest between the plaintiffs of the two suits, i.e., Title Suits Nos. 44 and 46. In order to find support for his contention, he referred to page 117 where their Lordships have observed, "that these conditions are established in the present case. There was clearly a conflict of interests between the appellant as the daughter and heir of Amar Nath, and Kashi, as the heir of Mukandi. It was only if the house belonged to Amar Nath that the plaintiff's suit could succeed; if it belonged to Mukandi it must fail. It was therefore necessary to decide between the conflicting claims of the defendants. The principal issue for decision in the 1909 suit was framed in the following terms:
"4. Was Babu Amar Nath owner of the disputed house? Is the house liable to be sold in execution of (the plaintiff's decree)?"
This issue was found against the plaintiff by the trial Judge, and "as the result" of this finding this suit was dismissed. It was decided in his favour by the High Court, and his suit was decreed. It is not suggested for the respondents that this determination was not final.
It is true that the appellant did not enter an appearance in the suit, and it is also said that she was not a necessary party to it; but their Lordships do not regard either of these factors as really material. The appellant was at all events a proper party to the suit and had the right to be heard if she so desired. If she chose to stand by and let the plaintiff fight her battle, it could not affect her legal position. The test of mutuality is often a convenient one in questions of res judicata. If the decision had gone the other way the appellant could hardly have claimed that because she did not choose to appear she was not bound by it, and so have compelled Kashi to litigate the matter over again, and if the appellant would have been bound, so must Kashi be. There is however evidence on the record of the present suit, emanating from one of the principal witnesses for the respondents that the appellant did, in fact, support the plaintiff in the 1909 suit."
But, in my opinion, this portion of the judgment also does not help the contention oi' learned counsel as it has been held in Ram Niranjan Das v. Loknath Mandal, 1969 BLJR 176 = (AIR 1970 Pat 1) (FB), by a Full Bench of this Court, that a co-sharer has right to bring suit against trespasser for recovery of Ijmal lands without impleading other co-sharers. In other words, their Lordships observed that it is not at all necessary to implead the other co-sharers in the suit. It will be convenient to quote the observation of their Lordships at page 177 (of BLJR) = (at p. 6 of AIR) which is to this effect:
"..... It is relevant also to consider in this connection that it is a well-settled principle of law that one of the various co-owners of a property, if in possession will be deemed to be in possession on behalf of all the co-owners and it is for this reason that his possession in law, therefore, is not regarded as adverse to other co-owners unless there is distinct proof of ouster. In that view of the matter also, the interest of an undivided co-owner or co-sharer must be taken to cover every inch of land which may be the subject-matter of dispute as belonging to the co-owners and hence it is clear that there is no support for appellant's lawyer's contention either in principle or in authority as to why a co-sharer's suit cannot be held to be maintainable without impleading other co-sharers and why it should not be decreed in respect ol the entire interest of the co-owners which of course, however, will not affect the rights of other co-owners vis-a-vis a successful plaintiff in a suit against a trespasser."
In view of the above observations, in my opinion, it was not necessary at all to implead the two sets of the plaintiffs, who were admittedly co-sharers, in the two suits. Besides, I have already held that there was no conflict of interest between these two co-sharers as pach set had eight annas share in the subject-matter of dispute.
11. Learned counsel for the appellants also relied on a decision in Mittar Peddar v. Jadab Chandra, AIR 1917 Pat 653; where their Lordships Chamier, C. J. and Sharfuddin, J. were dealing with the question of res judicata and their Lordships observed that res judicata was a matter of substance, not a matter of form. In order to ascertain what matter directly and substantially in issue was heard and finally decided in a previous suit, the pleadings and judgment in that suit might be examined. In that case the suit for delivery of a kabuliyat was dismissed on the ground that the rent claimed was too high and in order to determine the cost to be awarded to the defendant, the Court went on to inquire what the proper rent was. Their Lordships held that Inasmuch as the decision of the rent was merely incidental and recorded lor a purpose collateral to the main issue, it could not operate as res judicata in a subsequent suit for rent.
In my opinion, this decision is not very relevant to the instant case. It may help us only to this extent that before we come to any conclusion we must look to the circumstances and the form in which the said compromise order was recorded by their Lordships to ascertain as to whether any question between the co-respondents of both the appeals has been finally decided. So, we have to find out the substance of the order.
12-13. The next decision which has been relied upon by learned counsel for the appellants, is in the case of Mani Kanak Ratan v. Sundarmunda, AIR 1939 Pat 225. In that case their Lordships were also dealing with the question of res judicata in a case where the plaintiff in a suit to set aside sale was not a party to a previous suit brought by his father and others for the same purpose, but was joined as pro forma defendant, he having refused to join the plaintiff on father's death, which suit was compromised in appeal in which the defendant's title was admitted by others. Their Lordships held at page 228:--
"The learned District Judge is also clearly wrong in holding that the present suit is barred by the principle of res judicata. As has been already stated, the suit of 1922 ultimately ended in a compromise, and the plaintiff being no party to the compromise, was not bound by it, nor can the decree passed and appeal based as it was on the compromise, operate as res judicata against him in this action .....".
The principle laid down under this decision is also not very much relevant to the issue to be decided in the instant appeal, but it gives some indication as to whether res judicata can apply when a compromise order is passed as against the co-respondents. A more appropriate case to be found is in P. Venkata Subba Rao v. V. Jagannadha Rao, reported in 1964 (2) SCR 310 = (AIR 1967 SC 591). In that case a suit was filed in 1941 for the recovery of Rs. 50,000/-. The respondents who were the judgment-debtors prayed for the scaling down of the amount due from them under the Madras Agriculturists' Relief Act, 1938, on the ground that they were agriculturists. The suit was compromised for Rs. 37,000/-. Some payments were also made. In 1949 they filed another application for the scaling down of the debt on the ground that they were agriculturists and hence they were entitled to the benefits of the Act of 1938 as amended in 1948. The appellants who were the decree-holders, resisted the claim, of the respondents on the grounds, inter alia, that the earlier compromise decree operated as res judicata.
Their Lordships at pages 322-23 (of SCR) = (at p. 595 of AIR) held:--
"..... The compromise decree was not a decision by the Court. It was the acceptance by the Court of something to which the parties had agreed. It has been said that a compromise decree merely sets the seal of the Court on the agreement of the parties. The Court did not decide anything. Nor can it be said that a decision of the Court was implicit in it. Only a decision by the Court could be res judicata, whether statutory under Section 11 of the Code of Civil Procedure, or constructive as a matter of public policy on which the entire doctrine rests. The respondents claim to raise the issue over again because of the new rights conferred by the Amending Act, which rights include, according to them, the re-opening of all decrees which had not become final or which had not been fully executed. The respondents are entitled to take advantage of the amendment of the law unless the law itself barred them, or the earlier decision stood in their way. The earlier decision cannot strictly be regarded as a matter which was "heard and finally decided". The decree might have created an estoppel by conduct between the parties; but here the appellants are in an unfortunate position, because they did not plead this estoppel at any time. They only claimed that the principle of res judicata governed the case or that there was an estoppel by judgment"
It will be also appropriate to refer to a decision of the Privy Council in Chandu Lal v. Khalilur Rahman, AIR 1950 PC 17, where their Lordships at page 18 in paragraph 4, quoting with approval the decision reported in AIR 1931 PC 114 (supra), held:--
"In 58 Ind App 158=AIR 1931 PC 114, the conditions for the application of the doctrine of res iudicata as between parties who have been co-defendants in a previous suit are thus laid down: there must be (1) a conflict of interest between the co-defendants, (2) the necessity to decide that conflict in order to give the plaintiff the appropriate relief, and (3) a decision of that question between the co-defendants. It may be added that the doctrine may apply even though the party, against whom it is sought to enforce it, did not in the previous suit think fit to enter an appearance and ccntest the question. But to this the qualification must be added that, if such a party is to be bound by a previous judgment, it must be proved clearly that he had or must be deemed to have had notice that the relevant question was in issue and would have to be decided."
Therefore, in my opinion, there was heavy onus upon the plaintiff-respondents of First Appeal No. 431 to establish that the plaintiff-respondents of First Appeal No. 430 had notice of the compromise which was going to be effected and which will have effect on their rights, title and interest in the disputed property. On the contrary, in paragraph 4 of the compromise petition filed in First Appeal 431 it is clearly mentioned that "the defendant second party-respondents were merely pro forma defendants, having no interest in the subiect-matter of the suit and they are pro forma defendants in this appeal before Hon'ble Court." In the order dated 11-5-66 recording the compromise it is also clearly mentioned that "learned counsel for the appellants wants that the appeal will stand dismissed as against respondents 6 and 7 who were pro forma defendants second party in the trial Court."
After due consideration, in my opinion, the contention of learned counsel for the respondents cannot be accepted. The appeal has got to be heard on merits.
14. Now I turn to the consideration of contention of learned counsel raised under point No. (1). He urged that in the instant case there is definite case of the plaintiffs that the terms of the lease expired in the year 1942 after which they were not in possession of the disputed land; whereas they filed Suit No. 44 on 21-10-1952, i.e., much beyond the time prescribed under Article 1(a) of Schedule 3 to the Bihar Tenancy Act, 1885, which is applicable in the instant case, as the plaintiffs were claiming those lands as their zirat lands and were seeking ejectment of the tenants from those lands. The period prescribed under the said Article is six months from the expiration of the term.
In order to support his contention he relied on a Full Bench decision of this Court in Janki Singh v. Mahant Jagan-nath Das, 3 Pat LJ 1 = (AIR 1918 Pat 398) wherein it was held that a suit by a landlord to eject tenant of zirat lands on the ground of the expiration of the term of his lease, is governed by Article 1(a) of Schedule 3 to the Bengal Tenancy Act, 1885 and the operation of Article 1(a) is not excluded in such a case by Section 116 thereof. But, in my opinion, this contention of learned counsel cannot be accepted as the above decision of the Full Bench of this Court has been overruled by a decision of the Privy Council in Mahanth Jagannath Das v. Janki Singh, AIR 1922 PC 142 = 49 Ind App 81. Their Lordships held that Article 1(a) of Schedule 3 to the Bengal Tenaacy Act, 1885 does not apply to the suits to eject persons, who were not in law non-occupancy raiyats of the land. Article 139 of the Limitation Act applies to such suits. Their Lordships were referring to the old Limitation Act and the period prescribed under the said Article is 12 years. In the instant case also old Limitation Act is applicable. Even if it is assumed that they were dispossessed in 1942, the suit having been filed on 21-10-1952, was within 12 years. Therefore, in my opinion, the suit is not barred under the Limitation Act, Thus, this contention of learned counsel fails.
15. Now I turn to the consideration of contention raised under point No. (iii) on which the result of this appeal mainly depends. It may be recalled that in this appeal we are concerned with the dispute regarding lands measuring 27 bighas and odd in plots Nos. 894 to 897. According to the plaintiffs, the lands of plots Nos. 894 to 897 are zirat and khudkasht lands. According to them, these lands are part and parcel of 200 bighas of zirat land which belonged to the ancestors of the plaintiffs and the co-sharers of their ancestors, who were 16 annas proprietors of Taluka Nao Kothi, Tauzi No. 656, and were in cultivating possession as such for more than 12 years since the passing of the Bihar Tenancy Act in the year 1885. Those zirat lands were then un-surveyed lands, and were locally recognised as kamat lands of the proprietors from time immemorial. Their further case was that after the survey the plots of the zirat lands were numbered, but by mistake they were recorded as ba-kasht in the record of rights, and in due course of time after partition between the ancestors of the plaintiffs and the other co-sharers the aforesaid four plots fell into the share of the plaintiffs arid the defendants third party. In 1927 the lands contained under plot No. 895, along with some other lands, which are not subject matter of dispute, were leased out on Manhunda basis for five years with the defendants first party, who executed kabuliat. The said lease expired in 1339 Fasli corresponding to 1932 when the lands came back in possession of the plaintiffs and their brother defendant No. 15 (of defendants third party). Subsequently, in 1935 defendant No. 35, as head of the family again settled the lands of plots Nos. 895 to 897 along with lands bearing plots Nos. 920 and 930 with Sitaram Singh father of defendants Nos, 13, 13(a) and Sheo Shankar Singh, defendant No. 14, who are defendants second party, for 7 years as per term of kabuliat, executed by them, which expired in 1942. It may be noted that the Court below found that the settlees Sitaram Singh and others were farzidars of defendants first party although the case of the plaintiffs was that these settlees were the real settlees, and not the benamidars of the members of the defendants first party. The plaintiffs' case further was that after the expiry of the lease in 1942 the lands so leased came back to the possession of plaintiff No. 1 and his brother defendant No. 15. Some dispute arose between plaintiff No. 1 and the brother. Taking advantage of the difference the defendants first party, in a proceeding under Section 145 of the Code of Criminal Procedure, claimed the entire lands under dispute as their raiyati lands. The Magistrate by order dated 29-10-1949 held in favour of the defendants first party, which gave rise to the institution of the present suits by the plaintiffs, whereas the case of the defendants first party was that the lands under those plots were bakasht lands and they have been rightly recorded as bakasht lands in the record of rights. Their further case was that those lands were initially raiyati lands before the last survey operation and before passing of the Bihar Tenancy Act, but the landlords somehow or other came in possession of those raiyati lands, and got them recorded as their bakasht The Court below, regarding lands of plot Nos. 895 to 897, held that they are proprietors' private lands, and the survey entries showing those lands as bakasht are incorrect and the defendants first party have not acquired occupancy right in the lands in these three plots. As regards land containing two huts on plot No. 894, the Court below held that it is not proprietors' private land and it is bakasht land, but the defendants first party have not acquired any title in respect thereof. Therefore, the Court below held that the plaintiffs have right and title over lands of plot Nos. 894 to 897 and they are entitled to recover possession and mesne profits etc. from the defendants first party.
Learned counsel for the appellants urged that the Court below erred in holding that the lands of plot Nos. 895 to 897 were the proprietors' private land and that they were entitled to recover those lands along with the land of plot No. 894. Therefore, under this plot we have to consider whether the plaintiffs have been able to establish that the lands comprised in plot Nos. 895, 896 and 897 are their zirat lands, as per condition con-
tained under the Rules for the determination of proprietors' private land under Section 120 of the Bihar Tenancy Act (hereinafter referred to as 'the Act') the relevant portion of which reads as follows:--
"(1) The Revenue Officer shall record as a proprietor's private land-
(a) land which is proved to have been cultivated as Khamar, zirat, sir, nij, nijjot or khamat by the proprietor himself with his own stock or by his own servants or by hired labour for twelve continuous years Immediately before the passing of this Act, and
(b) cultivated land which is recognized by village usage as proprietor's khamar, zirat, sir. nij, nijjot or khamat.
(2) In determining whether any other land ought to be recorded as a proprietor's private land, the officer shall have regard to local custom, and to the question whether the land was. before the second day of March. 1883, specifically let as proprietor's private land, and to any other evidence that may be produced; but shall presume that land is not a proprietor's private land until the contrary is shown."
It is admitted case of the contesting parties that the lands under the aforesaid plots are entered as bakasht in the survey record of rights prepared in 1908. There is presumption of correctness of the record of rights under Section 103-B of the Act. Therefore, it has been contended on behalf of learned counsel that in view of Sections 120 and 103-B of the Act there is double onus upon the plaintiff to establish that the lands under the aforesaid three plots were their private or kamat lands. Clause (3) of Section 103-B of the Act provides that every entry in a record of rights so published shall be evidence of the matter referred to in such entry and shall be presumed to be correct until it is proved by the evidence to be incorrect.
16. He submitted that it may be true that the plaintiffs' ancestors and their ancestors' co-sharers had at one time before passing of the Act. Kamat lands in village Kusmaut, but the plaintiffs have failed to establish that the lands under plot Nos. 894 to 897 were tne part and parcel of the same zirat land. He urged that it is the admitted case of the parties that village Kusmaut is a very big village containing several Badhs including Sirisia and Dudhela Badhs. Reference may be made to Guide and Glossary to the Survey and Settlement Operations under the Bihar Tenancy Act, published under the authority of Govern-
ment of Bihar, revised in 1937, according to which 'Badh' means division of the village into different blocks. He sub-
mitted that according to the parlies, the lands under these plots were situate in Dudhela Badh. He referred to the evidence of Ashok Singh who was examined as P.W. 14, who stated in cross-examination that the suit lands are in village Dudhela Badh. Similarly, P.W. 27 in cross-examination stated that the lands are in Dudhela Badh. The plaintiffs have produced Ext. 18(a) which is a certified copy of registered Thika patta executed by Choudhary Ramgulam Singh and others, 16 annas Maliks of tauzi No. 656 of village Kusmaut, in favour of Mr. George Thomas for the years 1276 Fs. to 1284 Fs. in order to establish that the plaintiffs' ancestors and the co-sharers of their ancestors, while making the settlement with Mr. Thomas, had set apart 200 bighas of khudkasht lands for their own cultivation which were excluded from the subject-matter of settlement with Mr. Thomas. The document which is marked as Ext. 18(a) is written in Urdu and has been translated into English by High Court translator and forms part of the paper book, but there was some omission in the relevant portion. Therefore, we got the original read over, the relevant portion of which reads as follows:--
"excluding according to law, Meyas Dargah Pakiran Jagir Paswan Clanda Daran and 2D bighas Kharaur, and 200 bighas khudkasht land, culturable and non-culturable in village Hajipur Kusmaut and Salimpur appertaining to Taluka Nao Kothi."
Learned counsel submitted that from Ext. 18(a), no doubt. It is clear that the plaintiffs' ancestors and the co-sharers of their ancestors had 200 bighas of khudkasht land, but from this it cannot be ascertained that these lands situated in Dudhela Badh, as nowhere in the sale deed it is mentioned as to where the khudkasht lands situated. Therefore, according to him from this deed it cannot be ascertained that the lands under the three plots mentioned above, which are subject-matter of dispute, were part and parcel of the aforesaid 200 bighas of khudkasht lands.
Learned counsel referred to another deed of lease, Ext. 18(b), dated 13-7-1877 which was executed by eight annas co-sharer. Mod Narain Singh on the expiration of the lease contained under Ext. 18(a), with respect to his share, in village Kasmaut, and other villages, in favour of the same person Mr. George Thomas. It may be noted that this deed also was written in Urdu, which was translated into English by the translator of this Court. In this deed also, regarding his share, it is clearly mentioned that the Thikadar, i.e., Mr. Thomas, shall have no concern with 100 bighas of former khudkasht land, and 12 bighas and 10 kathas of former kharhor land in Badh Sirsia, and jalkar 103 bighas and odd dih land situated in mauza Hajipur Kusmaut and 32 bigbas 10 kathas of khudkasht land situated in mauza Raghunandanpur Dha-boli and Salimbagh Chakarda, total area in all being 145 bighas of land, Jalkar and Dih. Learned counsel, with reference to this document, contended that this clearly shows that the 100 bighas, which were part of the khudkasht land as mentioned in Ext. 18(a) were situated in Badh Sirsia. According to him, Ext. 18(b) clearly supports the case of the defendants first party. The lands under dispute situated in Badh Dudhela cannot, therefore, be said to be a part and parcel of the khudkasht land owned and possessed by the plaintiffs' ancestors or their co-sharers, as those khudkasht lands situated in Badh Sirsia.
On the other hand, learned counsel appearing on behalf of the plaintiff-respondents submitted that Badh Sirsia mentioned in Ext 18(b) refers to the Kharhor land and not to the 100 bighas of khudkasht land. He submitted that it is very unusual that both culturable and kharhor lands will situate in same Badh Sirsia.
In my opinion, this submission of learned counsel cannot be accepted. If really the khudkasht lands were situated in some other Badh, it was expected that the executant of the deed, would give details as to where those lands situated, as he has done in the case of 103 bighas of jalkar land. It is clearly mentioned therein that the ialkar lands are situate in village Hajipur Kusmaut & 32 bighas 10 kathas of khudkasht land in village Raghunandanpur. Therefore, there was no reason why the executant would not mention specifically regarding 100 bighas of khudkasht land as to where it situated. In the deed it is mentioned that 100 bighas of khudkasht land and kharhor land situated in Badh Sirsia. It must be clearly understood that the executant meant to mention that 100 bighas of khudkasht land situated in Badh Sirsia. Even if it is assumed that it is doubtful as to whether Badh Sirsia refers only to kharhor land or to both kharhor land as well as khudkasht land, the plaintiff-respondents cannot take advantage of such vagueness in the deed, which is capable of two interpretations, there being heavy onus on them to establish that the disputed lands are part and parcel of the same khudkasht lands.
17, Learned counsel for the appellants further referred to Ext. 3(m) which is a kabuliat dated 11-3-1881 in favour ot Mr. Thomas executed by Choudhary Ram-
gulam Singh and Jagdeo Singh, the ancestors of the plaintiffs, who had taken Thika of eight annas share given to Mr. Thomas by Mod Narain Singh under the lease, Ext. 18(b). Ext. 3(m) is written in Urdu and has been translated into English by translator of this Court. Like Ext 18(b), Ext. 3{m) also mentioned that "the Katkanedars shall have no concern with one hundred bighas of former khudkasht land, and with 12 1/2 biahas of former kharaur land. Badh Sirsia, jalkar, fishery right and dih kadim in mauza Hajipur Kusmaut aforesaid". He also drew our attention to Ext. 18, Thika Patta executed by Raghubans Narain Singh and another to Jagdeo Narain Singh alias Jaipragas Narain Singh, dated the 5th Chait, 1288 equivalent to 20th March, 1881. By this deed the executants executed Thika patta in respect of the whole and entire four annas out of sixteen annas share in mauza Haiipur Kusmaut including all zammdari rights and appurtenances after excluding 16 bighas and 5 kathas of land situate in mauza Rashunandanpur and Salempur otherwise known as Dhabuli and 50 bighas of land situate in mauza Haiipur Kusmaut constituting old khudkasht land and 6 bighas 5 kathas of kharhaur land within the said mauza according to proportionate share, known as Badh Sirsia and Dih land in the mauza as their share on partition and jalkar of mauza aforesaid.
17. He then referred to Ext. 3(L), which being a counterpart of Ext. 18, is a kabuliat executed by Jagdip Narain Singh alias Jai Pragash Narain Singh to Raghubans Narain Sinqh and others, dated 5th Chait. 1288 fasli corresponding to 20th March, 1881, the relevant portion of which reads:--
".....With all rights in the items of zamindari, on excluding 16 bighas 5 dhurs of land, situate at mauza Raghunandanpur and Salempur otherwise known as Dhapanni and 50 bighas of land situate at mauza Haiipur Kusmaut, being old khudkasht land, and 6 bighas 5 kathas of kharaur land in the said mauza in accordance with proportionate share, known as Badh Sirsia and dih land in the said mouza ....."
18. Learned counsel for the appellants urged that all these documents clearly indicate that the khudkasht land situated in Badh Sirsia. In my opinion, ot least with reference to these documents it can be said with certainty that at any rate these documents do not indicate that the khudkasht lands situated in Badh Dudhela.
19. Learned counsel drew our attention to paragraph 26 of the judgment of the Court below where the learned Judge also observed that those bonds mentioned above were not at all helpful for coming to a decision that plot Nos. 895 to 897 were included under 200 bighas of land. Learned counsel submitted that the learned Judge, however, erred in coming to a decision that these three plots were part and parcel of 200 bighas of khudkasht lands, by taking into evidence certain inadmissible documents. In this connection he referred to Ext. 26(a) which is deposition of Srilal who gave his evidence in Second Appeal 682 of 1892. He was patwari of Mr. Thomas till the year 1287 fasli. In paragraph 3 of his deposition he stated that since the year 1276 till the year 1284 fasli, Mr. Thomas was the Thikadar of the whole sixteen annas share of the mauza. After the year 1284 Mr. Thomas was Thikadar of eight annas share. He had the Thika for the years 1285 to 1299. Four annas of Babu Raghubans Narain Singh and four annas share of Babu Jagdeo Narain Singh were in khas possession. In paragraph 9 of the deposition he stated that Babu Raghubans Narain Singh had khudkasht 12 or 13 bighas in Badh Dudhela, 12 bighas in Badh Bodi, 11 or 12 bighas in Badh Gamhi Kist and 12 or 13 bighas in Badh Tulheria. Learned Judge has placed much reliance on this exhibit in order to support the case of the plaintiff-respondents that the khudkasht lands were in Badh Dudhela, as he has observed that fortunately the plaintiffs have filed deposition of Srilal. Learned counsel contended that the deposition of Srilal under Ext. 26(a) is inadmissible in evidence, as it is hit by the provisions contained under proviso to Section 33 of the Indian Evidence Act, 1872, which clearly lays down that in order to make a deposition in a prior proceeding aqmis-sible, it must be shown that the first proceeding was between the same parties, or their representatives-in-interest. In the instant case, Srilal, by no stretch of imagination can be said to be the representative of the plaintiff-respondents or of their ancestors or their co-sharers. Admittedly he was Patwari, an employee, of Mr. Thomas.
20. Learned counsel appearing on behalf of the respondents, however, urged that Srilal may be treated as the representative of the plaintiffs' ancestors as he was emplovee of Mr. Thomas, who was the mortgagee of the plaintiffs' ancestors. In that view it may be said that Srilal was the representative of the ancestors of the plaintiffs.
In my opinion, this contention of learned counsel for the respondents cannot be accepted. Srilal cannot be treated as representative of the ancestors of the plaintiffs. I hold that Ext. 26(a) was inadmissible in evidence and the learned Judge erred in taking it in evidence.
21. Learned counsel for the appellants then referred to Ext 21, which is a petition dated 8-5-1894, filed by one Har-dayal Singh, who was one of the tenants, who had filed the said petition against Jagdeo Narain Singh, ancestor of the plaintiffs, alleging that Jagdeo Narain Singh wanted to take forcible possession over his raiyati lands. In that petition he has shown his raiyati lands under three blocks in Dudhela Badh. While giving the details and boundaries of his each block of raiyati lands, he has mentioned towards south "khudkasht jot zirat of Babu Sia Prasad Singh and Babu Mod Narain Singh". The learned Judge in paragraph 29 of his judgment has taken it as an important piece of evidence, in favour of the plaintiffs in order to show that the zirat lands were in Dudhela Badh. Learned counsel on behalf of the appellants contended that this also is inadmissible in evidence under Section 32(3) of the Evidence Act. In order to find support, he relied on a Full Bench decision of this Court in Soney Lall Jha v. Darbdeo Narain Singh, AIR 1935 Pat 167, where their Lordships observed that the statements of boundaries in documents of title between third parties are not admissible under Section 32(3) of the Evidence Act. Such a statement cannot be said to be necessarily and prima facie against the proprietary interest of the person making it. In that view or the matter, in my opinion, the contention of learned counsel for the appellants has got to be accepted and the learned Judge committed an error in taking Ext. 21 in evidence.
22. It follows that both with regard to Ext. 26(a) and Ext. 21 the learned Additional Subordinate Judge has misdirected himself in law. One cannot help saying that if he had only cared to look into the relevant provisions of the Evidence Act and followed what was held in the Full Bench decision of this Court reported in AIR 1935 Pat 167 (supra), the error would have been avoided.
23. Further, in order to establish that the three plots of land were part of the zirat lands which were in Dudhela Badh, the learned Judge relied upon the evidence of Gauri Shankar Prasad, who was examined as P.W. 49 in Title Suit Nos. 44 and 46. He gave his age to be about 76 years in 1959, when he deposed before the Court below. He was an employee of Ajodhya Prasad of Nao Kothi since he was 15 years old. He deposed that Aiodhva Prasad, Jagdeo Narain Singh and Sheo Prasad had lands in village Kus-maut. Those lands were khudkasht lands. Mod Narain Singh. Raghubans Narain, Choudhary Ramgulam Singh and Jagnarain had given 16 annas interest in village Kusmaut and other villages in Thika to Mr. Thomas. He further stated that they had kept 200 bighas of khudkasht land of village Kusmaut in their possession. They personally cultivated 200 bighas of land with their plough and ox. The village was given in Thika in the year 1867. It is this witness, who proved Exts. 18(a) and 18(b). He further deposed that he knew the 75 bighas of land of Dudhela Badh In dispute. Fifty-five bighas out of 75 bighas in suit were covered under 200 bighas of lands which were not given in lease. Fifty-five bighas of lands were measured under plot Nos. 895, 896 and 897.
Plot Nos. 895, 896 and 897 are khud-kasht lands of the landlords. Learned counsel appearing on behalf of the appellants urged that the court below ought not to have relied on his evidence. He has drawn our attention to a portion of his deposition in the cross-examination, wherein he stated that the papers of the Estate of Ajodhya Prasad would not show that he was his manager or servant. Further, he stated that he began to study at the age of 6 years and passed middle vernacular at the age of 11 years. He gave up his studies in 1899. He had read Hindi. The papers which he had proved were written in Urdu. He was not present when the leases or sub-leases were executed. Learned counsel urged that as he did not know Urdu, he was not a competent witness to prove Ext. 18(a) and Ext 18(b) which were admittedly written in Urdu. Further, he drew our attention to another portion of the cross-examination, where the witness stated that he could not say the khata and khasra numbers of the 200 bighas of lands which were not given in the lease. At another place in cross-examination he stated that Ajodhya Prasad had borne the expenses of his education. Therefore, in my opinion, this witness does not appear to be an independent and reliable witness. Hence, much reliance cannot be placed on his evidence.
24. Learned counsel on behalf of the respondents, however, referred to another set of documents (Exts. 3 series) which, according to him, clearly indicates that the three plots were part and parcel of the khudkasht land, which were Badh Dudhela. In this connection he referred to Ext. 3(t) which is a kabuliat dated 15-6-1927 executed by Hirday Narain Singh, grandfather of Ramcharitar Singh defendant No. 12) and father of Ramsagar Singh (defendant No. 11), who were members of defendants first party, in favour of Raj Rajeshwar Prasad (brother of plaintiff No. 1) and others. It may be noted that by this kabuliat, Hirday Narain had taken settlement, for a limited period, for a term of 5 years from 1335 Fasli to 1339 Fasli, 4 bighas, 14 kathas and 17 dhurs of zirat lands as per boundary given in the deed, which were portions of the khudkasht lands belonging to Chou-dhary Raj Rajeshwar Prasad and Babu Lal Prasad Singh and others. The further recital in the said kabuliat is that the said land was under the possession of the proprietors and his representatives-in-interest as khudkasht land, and they were determined in survey operation as the bakasht interest of the aforesaid proprietor. It is also mentioned therein that the executants of the kabuliat shall not change the feature and the status of the aforesaid kamat lands. This kabuliat relates to the portion of land of plot No. 895. Learned counsel for the respondents then referred to Ext. 3 (a). This was also a kabuliat dated 15-6-1926 executed by Ramparsan Singh, father of Bacha Singh, defendant No. 1, a member of the defendants first party, to Chou-dhary Raj Rajeshwar Prasad, brother of the plaintiff.
According to this kabuliat he had taken settlement of 4 bighas 19 kathas and 17 dhurs of zirat land in village Kusmaut and in this exhibit also similar recital is made as in Ext. 3 (t). This relates to a portion of plot No. 895. It also relates to a portion of plot No. 991 which is not relevant for the disposal of this appeal. He further referred to Ext. 3(n). This was also executed by Ramparsan Singh in favour of Choudhary Raj Rajeshwar Singh on 27-7-1927. Similar recital is made in this deed also. In this kabuliat settlement was made in favour of the executant for 8 bighas 2 kathas and 16 dhurs of zirat land in the same village Hajipur Kusmaut. In this deed also similar recital has been made. It relates to a portion of plot No. 895 and other two plots 855 and 991; the latter two plots are not relevant so far this appeal is concerned. He drew our attention to Ext. 3 (o) which is also a kabuliat dated 17-7-1935 executed by Sitaram Singh, who was one of the farzidars of defendants first party as held by the Court below. Sitaram is also father of Chandradeo Singh, defendant No. 13, and Satnarain Singh, defendant No. 13(a), who are members of the defendants second party. It is for a period of 7 years in favour of Choudhary Raj Rajeshwar Prasad Singh. It is with respect to 32 bighas and 3 kathas of land situated in Hajipur Kusmaut. In this deed also similar recital is made regarding the nature of the land as kamat land. Further, an undertaking is given therein, by the executant that he shall not acquire any title to the said kamat land, and on the expiry of lease he would give up possession to the lessor, i.e., to the proprietor. It is also stated therein that the executant shall not acquire occupancy right in the land. It is also stated that the executant had executed the kabuliat by making the admission of all stipulations and by reading it and by getting it read over and explained to him, so that the same may be used when required. This kabuliat relates to the portion of lands in plots Nos. 895, 896 and 897; and in the boundary portion towards south, it is mentioned khudkasht lands of malik.
Learned counsel for the respondents contended that these kabuliats, which have been executed by the ancestors of the defendants first party, and defendants second party, who were their farzidars, estop the defendants first party from challenging the lands in plots Nos. 895 to 897 as kamat lands. These deeds contain their own statement and are binding on defendants first party. The kabuliats, according to him, conclusively establish that the lands under these plots were the kamat lands of the plaintiffs and they were part and parcel of the 200 bighas which were zirat lands of the plaintiffs' ancestors, and the co-sharers of their ancestors.
25. On the other hand, learned counsel appearing on behalf of the appellants submitted that in those documents also it is not mentioned that the lands under the three plots were part and parcel of the 200 bighas of zirat lands mentioned in Ext. 18(a); nor they anywhere indicate that the zirat lands situated in Badh Dudhela, nor they mentioned that those zirat lands by mistake were mentioned as bakasht lands in the survey record of rights. All these kabuliats were prepared by the lessors, who got them executed by the lessees, who were not aware with meaning of kamat, zirat or khudkasht lands.
He relied on a decision of the Privy Council in Radha Krishna Thakurji v. Raghunandan Sinha, AIR 1935 PC 47. The case which their Lordships of the Privy Council were considering, also related to admission made in the kabuliat by the respondents that the lands were the private lands of the appellants. The Subordinate Judge held that the terms of the kabuliat showed that the lands were let to the respondents for the purpose of cultivation and they were the private lands of the appellants. On appeal, this High Court agreed that the lands were let for the purpose of cultivation, but their Lordships of this Court differed from the learned Judge's conclusion as to the private lands, and they allowed the appeal. Hence, aggrieved by the order of the High Court an appeal was filed to the Privy Council and their Lordships at page 48 observed:
"On the question of private lands, St is the duty of the Court, as provided in Section 120, Tenancy Act, to presume that land Is not a proprietor's private land until the contrary is shown. Further the lands in suit are entered in the survey khatian completed in 1899, as 'proprietor's bakasht', and their Lordships agree with the High Court that the 'Guide and Glossary to the Survey and Settlement Operations in this District', which were published in 1907, and the 'Final Report of the Survey and Settlement', published in 1926, make clear that the entry in the Record of Rights negatives the appellants' contention, and is entitled to the statutory presumption of its correctness. The report also states the term 'zirat' is locally applied to all land in the possession of the proprietor, irrespective of whether it is " truly zirat, or private land, within the meaning of the statute. For this reason, their Lordships agree with the High Court that the admission in the kabuliat of 1914 that the lands were 'khudkasht' that cannot be accepted as a clear admission they were not only in the possession of the appellants but were also zirat, or private land ....."
Learned counsel further contended that these recitals are not admissible in evidence and at any rate not much value can be attached to these recitals.
26. To repel these contentions, learned counsel for the respondents referred to the kabuliat, Ext. 3(o), to show that the executant was familiar with the terms 'Kamat' as well as 'khudkasht land' and the difference between the two, because in that very deed he mentioned the kamat land in the body of the deed, and while giving the boundaries of the kamat lands towards the south he mentioned "khudkasht lands of the malik". That obviously indicates that he was familiar with the terms. Besides, in the kabuliat it is mentioned that the same was read over and explained to the executant before he executed the deed. Learned counsel referred to a decision of the Supreme Court in Harihar Prasad Singh v. Deonarain Prasad, AIR 1956 SC 305 where their Lordships were dealing with similar questions regarding the proprietors' private land as contemplated under Section 120(2) of the Bihar Tenancy Act, as well as with regard to the presumption of correctness of entry made under Section 103-B of the said Act. At page 308 their Lordships while dealing with the case observed that in that case some oral evidence was adduced by both the sides as to the character of the lands, but it was too vague and interested to be of much value. Therefore, their Lordships concentrated only on the documentary evidence adduced by the parties and their Lordships at page 308 in paragraph 5 observed:
"The earliest document bearing on the question is Exhibit 1, which is a mortgage deed executed by the previous owners Firangi Rai and others to Harbans Narain Singh on 10-4-1893 over a portion of the suit lands. Therein it is recited that the mortgagors "mortgage, hypothecate and render liable the properties constituting the proprietary mukarari interest, with all the zamindari rights and claims Including the 'khudkasht kamat lands'."
The word 'khudkasht' means personal cultivation, and that is a neutral expression, which might include both private lands and bakasht lands, that is to say, raiyati lands, which had come into the possession of the proprietor by surrender, abandonment or otherwise. But the word 'kamat' has a definite connotation, and means private lands (Vide Section 116, Bihar ' Tenancy Act).
If the recital in Exhibit 1 is to be accepted as correct, the lands were on that date in the personal cultivation of the proprietor as private lands .........".
Their Lordships in the same paragraph further observed:--
"......... These recitals are of considerable importance as they occur in deeds inter partes. The respondents are right in contending that they cannot be regarded as admissions by the mortgagees as the deeds were executed by the mortgagors; but they are certainly admissible under Section 13, Evidence Act, as assertions of title, and as it is under these documents that the first party defendants claim, their probative value as against them and as against the second party defendants who claim under them is high."
Learned counsel further submitted that in this case the plaintiff-respondents have been able to rebut the presumption which was available to the appellants under Sections 120 (2) and 103-B of the Act and, that they have been able to discharge their onus by adducing the evidence under Ext. 3 series. In this connection he relied on the same judgment of the Supreme Court where their Lordships at page 309 in paragraph 6 observed:--
"Now, what is the evidence adduced by the defendants to rebut the inference to be drawn from them? None. They simply trust to the presumptions in their favour enacted in Sections 120(2) and 103-B of the Act to non-suit the plaintiffs. But these are rebuttable presumptions, and they have, in our opinion, been rebutted by the evidence in the suit, which is all one way."
But, in my opinion, the facts and circumstances in the case reported in AIR 1956 SC 305 (supra) were different. From the above it is clear that there was not sufficient evidence adduced on behalf of the defendants to resist the evidence of rebuttal. Their Lordships, in that case had not laid down the general principle indicating the circumstances, under which the burden of proof shall be discharged or the statutory presumption shall be displaced. In my opinion, whether the statutory presumption attaching to an entry in the survey record of rights has been properly displaced or not, must depend on the facts of each case. In the instant case, the earliest documents which came into existence before the survey record of rights, which were prepared In 1908, were Exts. 18, 18(a), 18(b). 3(m) and 3(L). We have already seen that from these exhibits it cannot be said with certainty that the lands under plots Nos. 895, 896 and 897 were part and parcel of the zirat lands, which were in possession of the plaintiffs' ancestors or their ancestors' co-sharers. These documents do not indicate where those private lands were situated. Their boundaries are not given. Admittedly, in the years 1867 and 1881, when these documents were executed, the lands were not surveyed. Therefore, no plot number could have been given. But, nonetheless, it was essential to indicate clearly as to where those proprietors' private lands were situated; more so, because those lands were not surveyed. When we refer to the documents Exts. 18(b), 3(m) and 3(L) there are certain indications which lead to the conclusion that the lands were situated in Sirsia Badh as mentioned earlier. Even if it is assumed that Badh Sirsia refers to Kharhor land and it does not refer to the zirat lands, in the circumstances of the uncertainty, in the instant case, there is heavy onus on the plaintiff-respondents to establish that the lands under the three plots were part and parcel of the same zirat lands, which existed in the years 1867 and 1881.
In my opinion, those documents are not helpful to the plaintiff-respondents in displacing the statutory presumption contained under Sections 103-B (3) and 120(2) of the Bihar Tenancy Act. Admittedly, it is the case of the plaintiffs that the disputed land situated in Badh Dudhela, as per evidence led in the trial Court, referred to earlier. If we refer to schedule A to the plaint, while giving description of the land under dispute, it is specifically mentioned by the plaintiffs that the lands in dispute situated in village Hajipur Kusmaut Badh Jagdishpur. This indicates that the plaintiffs were themselves not certain where those proprietors' private lands situated. Admittedly, village Kusmaut, as mentioned earlier, included several Badhs. According to the case of the plaintiffs, after the proprietors' private lands were surveyed, by mistake, they were recorded as bakasht lands in the survey record of rights, which was prepared in 1908. The plaintiffs have not given satisfactory reasons as to why they allowed the mistake to continue in the survey record of rights, and took no step to rectify those mistakes? so much so that even in the documents contained under Ext. 3 series referred to above, there is no mention regarding the mistake having crept in, in the survey record of rights. In my opinion, even the documents contained under Ext. 3 series on which much reliance has been placed on behalf of the plaintiff-respondents, do not help them in displacing the statutory presumption. It has been held in Sivarama Iyer v. Subramonia Iyer, AIR 1953 Tray-Co 417 at p. 421 by Koshi, C.J. and Govinda Pillai, J.:--
"..... Relying on the decision of the Judicial Committee of the Privy Council In Banga Chandra v. Jagat Kishore, AIR 1916 PC 110, it had been laid down in 'Esekkimadan Nadan v. Chellamma Na-dachi'- (1937) 27 Trav LJ 44 that a recital in a deed or other instrument is in some cases evidence against the party who makes it; but it is no more evidence as against other persons than any other statement would be ....."
Therefore, even if those documents are admissible much evidentiary value cannot be attached to them, in the facts and circumstances of the case. The legal terms and the conditions, most favourable to the lessors, urged in the document under Ext. 3 series, clearly indicate that the documents were drafted at the instance of the lessors, who have taken too much of precaution to safeguard their rights in the lands which were subject matter of the lease in those documents. If really those lands were proprietors' private lands or kamat lands, they were amply protected under Section 116 of the Bihar Tenancy Act. It was not necessary for the lessors to have taken such precaution. That also creates grave suspicion as to whether those lands were really proprietors' private lands. It is noteworthy that even though the lands were in reality being settled with the defendants, extra precaution was taken by getting kabuliats from persons who were relations of the defendants. This shows that the lessors were afraid that if the lands were settled with the defendants who had other raiyati lands in the village acquisition of occupancy rights would be easier. This fact also indicates that the lands were really bakasht lands and not nij jote or zirat. It is well settled that statutory presumptions are displaced to cogent evidence. In Halsbury's Laws of England. Third Edition, Volume 15, at page 343, under the heading "Effect of rebuttable presumptions of law" it is mentioned:--
".....The nature of a presumption of law is that the Court treats as established some fact of which no evidence has been given, and when rebuttable, it can have no weight capable of being put In the balance against opposing evidence which is believed. It does not follow that such a presumption may be rebutted in every case by any evidence however slight. The rebutting evidence must be considered on its merits .....". Therefore, in my opinion, the plaintiff-respondents failed to displace the statu-
tory presumption contained under Sections 103-B (3) and 120 (2) of the Act Thus, the findings of the Court below that the lands under the three plots, namely, 895 to 897 were the proprietors' private lands and the survey entries showing these lands as bakasht were incorrect, cannot be accepted. Consequently, the other findings that the plaintiffs were entitled to recover lands under plots Nos. 895, 896 and 897; that they were entitled to mesne profits, and that the plaintiffs were entitled to recover Rs. 2,778/- from the defendants first party, being the proportionate amount of sale proceeds, which was deposited in Court during the pendency of the case under Section 145 of the Code of Criminal Procedure and which was withdrawn by the defendants first party, also cannot be sustained. These findings are, therefore, set aside and the judgment and the decree of the Court below are modified to that extent.
As regards the land under plot No. 894, it has been already mentioned earlier that the Court below held that the land under the said plot was bakasht land. The Court below considered the dispute between the plaintiffs and the defendants first party regarding the land in the said plot in paragraphs 166 to 168 of its Iudgment, and held that the defendants first party were not in possession of plot No. 894. They were not able to prove that they had taken oral settlement of the entire lands in the year 1932 and their story of the oral settlement was not accepted by the Court below. After due consideration the Court below held that they have not acquired any title with respect to the lands in plot No. 894. Therefore, it held that the plaintiffs were entitled to recover the land under plot No. 894. Learned counsel appearing on behalf of the appellants has not placed before us any evidence either oral or documentary, to satisfy that the said findings of the Court below were incorrect. In that view of the matter, the finding regarding plot No. 894 by the Court below is accepted, and I hold that the plaintiff-respondents are entitled to recover disputed land in plot No. 894 from the defendants first party.
27. Now I turn to the consideration of point No. (ii). Learned counsel for the appellants urged that the defendants first party are the settled raiyats of the village, and since the finding of the Court below is that they were in possession over the lands in the three plots, viz., 895 to 897 they have acquired occupancy right over those lands. In order to show that they were the settled raiyats of the village, learned counsel has drawn our attention to the evidence of Bateshwar Singh (P.W. 18) who has stated in cross-examination that Bacha Singh has got ancestral lands in village Kusmaut. He referred to the evidence of Dwarika Singh (P.W. 21) who in his cross-examination stated that Bacha Singh has got 5 bighas of ancestral lands in village Kusmaut. He also referred to the evidence of Dund Singh (D.W. 14) who deposed that he got 7 bighas of land in village Kusmaut. He further stated that he and his co-sharers have got lands recorded in one holding which measured 60 bighas and odd. Sukhram. Gazadhar and Ramparsan had also share in the holding. Ramparsan Singh had a share in the holding. Bacha Singh is the son of Ramparsan. Each co-sharer was in separate possession of the plots. He further stated that they have got holding splitted up after the estate vested in the Government.
He has also drawn our attention, to paragraph 170 of the judgment of the trial Court where it is specifically mentioned that the defendants have alleged that they are settled raiyats of the village and this factum was not disputed. Again in paragraph 172, the Court held that the defendants first party are settled raiyats of the village. Therefore, learned counsel for the appellants contended that if the plaintiff-respondents have failed to establish that the lands under plots Nos. 895 to 897 were proprietors' private land or kamat land, the defendants first party, being settled raiyats of the village, as a matter of course, would acquire occupancy right according to the provisions contained under Section 21 of the Act. Even in this Court learned counsel appearing on behalf of the plaintiff-respondents has not been able to show that the plaintiff-respondents were not settled raiyats of the village. Since, I have already held that the plaintiff-respondents have failed to establish that the lands under plots Nos. 895 to 897 were zirat lands or proprietors' private lands, in my opinion, the contention of learned counsel for the Appellants is well grounded.
Therefore, I hold that the defendants first party have acquired occupancy right over the lands in dispute in plots Nos. 895 to 897. Thus, the finding of the trial Court that the defendants first party have not acquired occupancy right over these three plots, is also set aside, and the judgment and decree of the Court below are modified to that extent.
28. Since I have already held while dealing with point No. (iii) that the plaintiff-respondents have failed to establish that the lands under plots Nos. 895 to 897 were the proprietors' private lands, and since that point has been decided in favour of the appellants, it is not necessary to decide the point No. (iv).
29. Now I turn to consider point No. (v). It may be recalled that under this point learned counsel for the appellants contended that even if the lands under plots Nos. 894 to 897 were held to be proprietors' private land, the plaintiffs not being in possession at the time of the vesting under the Land Reforms Act, the same has vested in the State of Bihar under Section 6 of the Bihar Land Reforms Act, 1950, and he relied on a decision of the Supreme Court in Suraj Ahir v. Prithinath Singh, 1963 BLJR 1 = (AIR 1963 SC 454). But, in my opinion, since I have already held that the lands under plots Nos. 895 to 897 were not the proprietors' private lands, this point also has become infructuous so far the lands under plots Nos. 895 to 897 are concerned. I have already held that the defendants first party have acquired occupancy right in the lands under dispute in these three plots. Only in case of the land under plot No. 894 I have held that the plaintiff-respondents are entitled to recover and over this land defendants first party have not acquired any right. In that view of the matter it has become necessary to consider the contention of learned counsel for the appellants under this point only with regard to the land under plot No. 894. Learned counsel on behalf of the plaintiff-respondents contended that the defendants first party had acquired possession over this land along with others, in view of the order passed in the proceeding under Section 145 of the Criminal Procedure Code, Therefore. Section 6 of the Land Reforms Act will have no application in the instant case. In order to support his contention learned counsel for the respondents relied on a decision of this Court In Kanhaiya Lal Singh v. Bilas Singh, 1967 BLJR 600, where their Lordships have held that the declaration of the possession under Section 145 of the Code of Criminal Procedure does not amount to actual possession, and actual possession must be deemed of the persons, who are found by Civil Court to have been in actual possession. Besides, in this case, notice under Section 4 (e) of the Land Reforms Act was issued to the State of Bihar, but none appeared on behalf of the State of Bihar to advance the claim of vesting under the Land Reforms Act. In that view of the matter, in my opinion, the lands under plot No. 894 have not vested in the State of Bihar under the said section of the Bihar Land Reforms Act. As held earlier, the plaintiff-respondents are entitled to recover the land under dispute in plot No. 894 from the defendants first party.
30. In the result, the judgment and decree of the trial Court are modified to the extent indicated above and the appeal is allowed in part, but in the circumstances of the case, there will be no order as to costs.
A.B.N. Sinha, J.
31. I agree.