Judgement

Appeal (No. 54 of 1927) by special leave from a decree of the Court of the Judicial Commissioner of the Central Provinces (April 15, 1924) reversing a decree of the District Court of Raipur, which varied a decree of the Subordinate Judge of Bilaspur.

The appeal related to the right of a protected thekadar under s. 109 of the Central Provinces Land Revenue Act, 1917, to possession of the theka against other members of the joint Hindu family of which he was the managing member.

The facts and the effect of the decrees in India appear from the judgment of the Judicial Committee.

1927. Nov. 28, De Gruyther E.G. and Raikes for the appellant.

1 Law Rep. 55 Ind. App. 150 ( 1927- 1928)

Bhagwan Singh V. Darbar Singh 12

Wallach for the respondent.

Feb. 6. The judgment of their Lordships was delivered by

SIR JOHN WALLIS. The question for decision in this case is a short one. The suit was brought by the plaintiff, Thakur Bhagwan Singh, who has the status of a protected thekadar under chap. IX. of the Central Provinces Land Revenue Act, 1917, in respect of the village of Bodtara, against his nephews Khedu Singh and Darbar Singh, who are members of the joint family (of which he is admittedly manager), for possession of the entire village and of the house and compound at Bodtara, from which he had been excluded by the defendants, and as to which he claimed to be entitled to possession under s. 109 of the aforesaid Act.

The defendants pleaded, among other things, that they had lived with the plaintiff in the family house at Pandaria until he and his family began to ill-treat them, and had then removed to Bodtara and had taken joint possession, along with the plaintiff, of the village and house. Whether they had a right to do so was the subject of the first issue Whether the plaintiff was entitled to absolute possession on the strength of his protected status certificate even though the defendants be held to be co-sharers in the theka with the plaintiff ? "

The Subordinate Judge gave the plaintiff a decree for possession of the village and a declaration that he was entitled to remain in possession of the village so long as he was the holder of the certificate of protected status, but that as regards the house, the suit should stand dismissed as premature, and that the defendants, as against the plaintiff, should remain in possession until ousted as the result of a suit for partition or as the result of an amicable arrangement. On appeal the District Judge found that the house was an essential adjunct of the village, and modified the decree by giving the plaintiff a decree for possession of the house as well as of the village. The case then came on second appeal before the Court of the Judicial Commissioner, who altered the decree of the lower Appellate Court, granting the plaintiff exclusive possession of the village and house, into a decree for joint possession with the defendants. From this decree the plaintiff obtained special leave to appeal to His Majesty in Council.

The position of a protected thekadar is that, under s. 108 of the Act, he holds the lands included in the theka under a lease on terms settled after inquiry by the revenue authority but executed by the proprietor (or in case of refusal by the revenue authority for him), subject to forfeiture as provided in s. Ill of the Act, one ground of forfeiture being his refusal to execute a kabulyat or counterpart of the lease. On the expiry of the lease he is entitled to renewal under cl. (c) of sub-s. 1 of s. 109, and under clauses (a) and (6) of the same sub-section, his tenure is made impartible and inalienable, and it is provided that on his death the succession thereto is to be regulated by the personal law of the deceased thekadar, subject to the condition that only one person at a time shall succeed and that such person shall be chosen as therein provided.

This being the position of the thekadar, it follows, in their Lordships opinion, that he is entitled as lessee to pos