Judgement

Appeal (No. 35 of 1924) from a decree of the High Court at Patna (January 9, 1923) reversing a decree of the Subordinate Judge of Arrah in the district of Shahabad.

The suit was brought by the respondent to evict the present appellant and his brother, a minor since deceased, from certain agricultural lands in the district of Shahabad, appertaining to the estate of the respondent known as the Dumraon Raj. The question in the litigation was whether the defendants had occupancy rights in the land.

The facts appear from the judgment of the Judicial Committee.

Law Rep. 53 Ind. App. 164 ( 1925- 1926) Bindeshwari Prasad Singh V. Maharaja Kesho Prasad Singh 65

The trial judge dismissed the suit. Upon appeal the decision was reversed, the learned judges (Das and Kulwant Sahay JJ.) holding that the land was ziraat, or private land of the proprietor ; and that the fact that the proprietor had let the land after March 2, 1883, as ziraat not being excluded from being evidence by s. 120 of the Bengal Tenancy Act,] 1885, as amended by Bengal Act I. of 1907. The appeal is reported at I. L. R. 2 P. 414.

1926. Feb. 25, 26. Dunne K.C. and Hyam for the appellant.

De Gruyther K.C. and E. B. Raikes for the respondent.

[Reference was made to the series of decisions of the High Court at Calcutta mentioned in the judgment of the Judicial Committee, also (for the respondent) to Gour Pershad Doss v. Sookdeb Ram Deb (( 1869) 12 Suth. W. R. 279.) and Shaikh Ashruf v. Ram Kishore Ghose. (( 1875) 23 Suth. W.

R. 288.)]

April 29. The judgment of their Lordships was delivered by

SIR JOHN EDGE. The suit in which this appeal has arisen was instituted on December 22, 1917, in the Second Court of the Subordinate Judge of Arrah by the Maharaja of Dumraon for possession of lands in mauzas Majharia and Khutaha in the district of Shahabad by the ejectment of the defendants. It was alleged in the plaint that the milkiat interest of the Dumraon Raj in the 16 annas of each of the mauzas belongs to the plaintiff, and that his name stands recorded in respect thereof. The suit was brought against the two defendants Babu Parmeshwari Prasad Singh and his younger brother, Babu Bindeshri Prasad Singh, minors, zamindars, sons of Babu Kesho Prasad Singh, deceased, under the guardianship of their mother, Musammat Radha Kuar. Kesho Prasad Singh and the defendants constituted until he died a joint Hindu Mitakshara family. The second defendant died a minor and without issue after the suit was brought.

The defence is that the defendants had a right of occupancy in the lands from which it was sought to eject them. If that right of occupancy existed, it was acquired under the Bengal Tenancy Act, 1885 (Act VIII. of 1885). The defendants were in possession, and under the circumstances of the case it was for the plaintiff to prove that he was entitled to eject them. Seven issues were framed the third was the material issue. It was " Have the defendants occupancy rights in the land in suit ? " That issue practically depended on whether the plaintiff should succeed in proving that the lands in question were his ziraat, private lands, as the proprietor. The Subordinate Judge found that the lands were not ziraat land, and that the defendants had a right of occupancy in them, and made his decree dismissing the suit. From that decree the plaintiff appealed to the High Court at Patna, and the High Court finding that the defendants had no right of occupancy in the lands, reversed the decree of the Subordinate Judge, and gave the plaintiff the decree for ejectment and mesne profits which he claimed. From that decree of the High Court this appeal has been brought.

Before considering s. 120 of the Bengal Tenancy Act, 1885, which appears to their Lordships to be the section upon the true construction of which the fate of this appeal mainly depends, they will state, as briefly as may be, the history of the lands in question so far as that history is known to them.

All the lands in suit were i