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13. This concludes the main question in dispute. Certain subsidiary points have, however, been raised in certain appeals and with these I proceed to deal. It should be premised that the khoti is divided amongst several co sharers and that only some khoti sharers and not all were the plaintiffs in the suit. All the plaintiffs did not appeal to this Court in the litigation in which Ganpati Gopal's case was decided. But when that litigation proved successful, the khots who were either plaintiffs or who had been the defendants applied on remand to the District Court to be brought on the record as the appellants, and that application has been in almost all the cases granted. In other cases the appellant died and his heir has been brought on the record after the period of ninety days allowed by the law. In some cases the period has in fact gone beyond seven or eight years, a procedure to which an objection is taken on behalf of Government.

16. The second objection by Government is in regard to the khoti nisbat lauds in the possession of the khoti co-sharers. It was argued that no faida should be allowed on such lands. The argument, however, was not seriously pressed. Obviously the khoti nisbat lands are liable to faida, though in the cases where these lands are cultivated by the khoti co-sharers, those co-sharers may ultimately recover their portion of the faida due to them from the managing khot. These lands, however, cannot escape the liability for faida and cannot, therefore, be excepted from the assessment of damages.

18. The fourth objection as regards the transfer of shares or a portion of shares pending the litigation was not pressed and need not, therefore, be considered.

19. The objection in F. A, No. 109 of 1928 was not pressed. That appeal must, therefore, be dismissed on that point, while in F, A. No. 94 of 1928, in which the tenant purchased a khoti share, such a person is obviously not exempted for the khoti nisbat land which he cultivated; and such a land by reason of the purchase of the khoti share by the tenant cannot, therefore, be excepted from damages.

20. The last point taken for Government is in two appeals F. A. Nos. 131 and 139 of 1928 which arose out of suit No. 68 of 19,8. The facts were that the co sharers in the khoti had 0-2-8 share in the village. The other sharers did not join in the suit, On the contrary from 1917 to 1921 some of them passed kabulayats and managed the village without the plaintiff's consent. The plaintiff fought the. suit up to the High Court, The khot nevertheless claimed damages although the village was not under attachment. The lower Court has held that it was not the primary duty of Government to choose any sharer as the managing khot with the right vested in the whole body of the khots, and it was only on their default that the right of Government to choose the managing khot came into play, and accordingly it awarded damages. The right to be the managing khot is ordinarily settled by agreement and by rotation among the body of the khoti co-sharers. But in case of a dispute the Collector gives a kabulayat to the khot whom he deems best. Had the difference between the co-sharers themselves been of an ordinary character, this procedure would have been followed, and the plaintiff would have recovered his faida from the person who was actually the managing khot and had passed a kabulayat to the Collector and had recovered the faida. But in the present case the difference between the present co-sharors was whether the new form offered by Government and ultimately held illegal by this Court in Ganpati Gopal's case should or should not be accepted The nature of the original dispute between the co-sharers does not, in my opinion, make any essential difference in the liability as between the khoti co-sharers themselves. It is not denied that the persona who were actually the managing khots have recovered their faida from the tenants, It is they, therefore, who are primarily responsible to any co-sharers such as the plaintiff who may not have received the faida. Under the decision of this Court in Ganpati Gopal's case, the plaintiff was in the right and the other co-sharers in the wrong in the view they took, as to whether they were or were not bound to accept the new form. But this does not affect the conclusion, as the faida for the years in question had been actually taken by the managing khot or knots who passed the kabulayat, and it is they and not Government who are liable to the plaintiffs respondents in appeal No. 131 of 1928 for those faidas. Accordingly I would allow the appeal on this point and reject the claim of the plaintifFs khots for damages during the years when the village was not under Japti but was under the management of the other co-sharers.