Judgment

DESAI, J. - The chequered history of the litigation culminating in this appeal by special leave by the original plaintiff spreads over a period of 70 years with no end in sight. To ascertain and dispose of the point raised in this appeal willy nilly the history of the litigation, as briefly as one can humanly try, will have to be set out.

2. One Tikait Fateh Narain Singh was the holder of an estate comprising Taluka Chakai within the revenue limits of which the lands involved in this litigation are situated. On the death of Tikait Fateh Narain Singh the estate devolved on his widow Mussamat Durga Kumari, she having widows interest as per the prevalent Hindu law at the relevant time. Mst. Durga Kumari sold the entire estate including Taluka Chakai to Maharaja of Gidhaur. After her death one Tikait Chandi Prasad claiming to be the next reversioner of Tikait Fateh Narain Singh brought an action on 15th May, 1907 being Title Suit No. 86/1908 against the Maharaja of Gidhaur for setting aside the alienation on the ground that the alienation was made by a widow having life estate and being without legal necessity, it was not binding on the reversioner. This litigation culminated in a decree in favour of Tikait Chandi Prasad by the Privy Council on 2nd November 1915. However, Tikait Chandi Prasad had succeeded in obtaining possession of Taluka Chakai somewhere in 1911 before the Privy Council finally ruled in his favour.

3. Soon after commencing the suit hereinbefore mentioned, Tikait Chandi Prasad felt stringency of funds necessary for righting the litigation and he mortgaged the proprietary interest in the estate which he was claiming as reversioner, with one Mr. Chrestian for Rs. 30,000. Even after the decision of the Privy Council in his favour, Tikait Chandi Prasad failed to discharge the mortgage with the result that Mr. Chrestian brought Title Suit No. 150/21 to recover the mortgage dues. This suit ended in a final decree on 17th November 1923. Mr. Chrestian took out execution of the final decree in Execution Petition No. 207/25 and at the Court auction Mr. Chrestian himself purchased the proprietary interest in Chakai Taluka on 16th June 1931 and then took delivery of the estate through the Court in 1934.

4. Before Mr. Chrestian commenced his action in Title Suit No. 150/21, one Pitamber Rai, the ancestor of the defendants (present respondents) had filed a Money Suit No. 22/1919 against Tikait Chandi Prasad for recovering dues from him and this suit ended in a money decree. Execution Case No. 22/21 was commenced by Pitamber Rai for sale of the lands involved in the present appeal and he himself purchased the same at a Court auction along with some other lands included in Khata Nos. 140 and 146. After the sale was confirmed Pitamber Rai obtained delivery of possession on 10th October 1924. A petition by judgment debtor Tikait Chandi Prasad for setting aside Court sale under Order 21, Rule 90, Code of Civil Procedure, did not meet with success.

5. On 18th April 1943 Mr. Chrestian sold his proprietary interest in Chakai Taluka to Rai Bahadur S. K. Sahana, the plaintiff in the present litigation and he claimed to have obtained possession of the lands purchased by him.

6. The plaintiff filed Title Suit No. 15/46 against the respondents defendants for recovery of possession of the suit lands alleging that the suit lands were proprietors private lands and were in actual cultivating possession of Tikaits from time immemorial. Alternatively it was the plaintiffs case that even if it be held that Tikait Chandi Prasad had occupancy ryoti rights over the suit lands, the same had merged with his proprietary rights and, therefore, the character of the land would be bakast lands of the proprietor and the defendants respondents would have no vestige of title for continuing in possession and they would be trespassers. This suit was dismissed by the trial Court and the first appeal by the plaintiff to the High Court failed. What is historica