Judgment

S. R. DAS, J.: This is an appeal by the defendants first party against the judgment and decree of the High Court of Patna (Manohar Lall and Ray JJ.) dated 23-2-1948, which reversed the decree of the Subordinate Judge at Chapra, dated 5-4-1945, and decreed the suit in favour of the plaintiffs.

2. The suit out of which the present appeal has arisen was instituted by the plaintiffs for a declaration of their title to, and confirmation of their possession of, certain lands and other ancillary reliefs. The plaintiffs claimed to have derived their title to the lands in suit by purchase from the defendant s second party by and under a registered deed of sale dated 19-7-1942. The relationship of the defendants second party was shown in a pedigree-table annexed to the plaint and reproduced below :

Janki Rai and Sharda Rai apparently left no issue.

3. The plaintiffs case was that on the deaths of Maida Kuer widow of Gobind Rai and of Buddha Kuer widow of Kari Rai Bator Rai (defendant 4) and Singhasan Rai (defendant 5) as their nearest reversioners inherited the shares of Gobind Rai and Kari Rai in the properties in suit. Thus at the date of the deed of sale in favour of the plaintiffs the defendants second party, namely, Bator Rai (defendant 4), Singhasan Rai (defendant 5) and Mt. Adhikari Kuer (defendant 6) had the entire 16 annas share in the properties in suit and the plaintiffs were bona fide purchasers for value from them and as such filed for the the reliefs already mentioned. The suit was contested by the defendants first party. They disputed the correctness of the pedigree-table annexed to the plaint and in paras. 7 and 8 of their written statement purported to set out what, according to them, was the real genealogical table. They claimed in para. 18 of the written statement that on the deaths of Maida Kuer and Budha Kuer, the father of the defendants 1 and 2 came into possession of the shares of Gobind Rai and Kari Rai as their nearest reversioner and that Bator Rai (defendant 4 ) or Singhasan Rai (defendant 5) had no connection or concern with those shares. They further pleaded in para.19 of the written statement that the lands of Bator Rai (defendant 4) and Singhasan Rai (defendant 5) were in the possession of the defendants first party as Shikmidars for over 20 years and that they had acquired occupancy rights in those lands according to law. It will be observed that Shikmi rights were claimed under Bator Rai (defendant 4) and Singhasan Rai (defendant 5) with respect to their respective shares in the lands in suit and not with respect to the shares that were of Gobind Rai or Kari Rai. Indeed, it was categorically pleaded that Bator Rai (defendant 4 ) and Singhasan Rai (defendant 5) had no concern or connection with the shares of Gobind Rai and Kari Rai.

4. The learned Subordinate Judge held that the pedigree-table set out in the plaint was correct and that the defendants first party or the father of defendants 1 and 2 did not inherit the shares of Gobind Rai or Kari Rai on the deaths of their respective widows Maida Kuer and Budha Kuer and that Bator Rai (defendant 4) and Singhasan Rai (defendant 5) inherited those shares as the nearest reversioners of Gobind Rai and Kari Rai and consequently by and under the registered deed of sale the plaintiffs acquired title to the lands in dispute. The Subordinate Judge, however, came to the conclusion that Bator Rai (defendant 4) and Singhasan Rai (defendant 5) made a Shikmi settlement not only of their original share in the lands but also of the shares of Gobind Rai and Kari Rai which on the death of their respective widows they (the defendants 4 and 5) had inherited as the nearest reversioners. The learned Subordinate Judge was conscious that no such case was made in the written statement but felt bound to arrive at that conclusion which seemed to him to afford the only rational explanation for the defendants first party being in possession of the lands of Maida Kuer and Budha K