Judgement

Consolidated Appeal (No. 110 of 1921) by special leave from a judgment and decrees of the Court of the Judicial Commissioner (July 20, 1915) affirming decrees of the District Judge of Gonda, which affirmed decrees of the Munsif of Utraula.

The appeal arose out of suits instituted by the respondents against the appellant in 1913, each plaint praying for a declaration that the plaintiff was an under-proprietor of land in Oudh of which he was in possession. The plaint in each case alleged that after the cancellation of a notice of ejectment in 1893 the plaintiff had continued in possession for more than twelve years on the basis of under-proprietary

Law Rep. 50 Ind. App. 202 ( 1922- 1923) Mohammad Mumtaz Ali Khan V. Mohan Singh

rights, and the defendant (the taluqdar) had not sued for a declaration that the plaintiffs right was merely that of a simple tenant. The facts appear from the judgment of the Judicial Committee.

The trial judge, the Munsif, held that the respondents originally were not under-proprietors, but that they had become so by prescription or limitation. He made declarations as prayed; the decrees were subsequently affirmed on appeal by the District Court, and by the Court of the Judicial Commissioner.

1923. April 23. De Gruyther K.C. and Parikh for the appellant. The respondents were not in fact under-pro prietors. The wajib-ul-arz of the village states expressly that there were no under-proprietors in the village; that was a point with which the wajib-ul-arz had to deal see Circular 20 of 1863, paras.4, 12; Circular 24 of 1863. The decision of 1893 was merely that a prima facie case had been made out. The subsequent possession was not adverse; the same payment continued to be made to the taluqdar, and there was no further assertion of the alleged right. In any case the plaintiff did not obtain a title under s. 28 of the Limitation Act, because the appellant could not sue for possession. The Munsif relied on Har Dagal v. Udit Narain Singh (( 1904) 8 Oudh Cases, 30.); that case was wrongly decided. If any article of the Limitation Act applies it is art.120, and that bars the plaintiffs suits. The decision of the Board in Pirthipal Singh v. Ganesh Din Singh (See note,

p. 210.) is not applicable to the facts of this case.

The respondents did not appear.

May 15. The judgment of their Lordships was delivered by

LORD SALVESEN. The appellant in these two appeals which have been consolidated was the defendant in a separate suit brought by each plaintiff (respondent) for a declaration to the effect that he was an under-proprietor of certain land situated in the village of Badhia Farid. This village forms part of the estate called the Bilaspur Estate in the Gonda District of Oudh. The Munsifs Court granted to each plaintiff a declaratory decree in terms prayed by the plaintiffs; these decrees were affirmed in appeal and the defendant obtained special leave to appeal to His Majesty in Council. There is no distinction between the two cases so far as the points in controversy are concerned and they may, therefore, be treated as one.

There has, unfortunately, been a considerable amount of litigation between the defendant and the plaintiffs who have the use or occupation of the land described. As far back as the year 1891 the defendant issued notices of ejectment under ss. 54 and 55 of the Oudh Rent Act, 1886 (Act XXII. of 1886), against the two plaintiffs or their predecessors in the title. They thereupon instituted proceedings under s. 108, sub-s. 8, of that Act to contest the said notices on the ground that they were not tenants liable to ejection by notice under the Act but were under-proprietors thereunder. In these proceedings final judgment was pronounced on March 17, 1893, by the Board of Revenue in

N. W. P. and Oudh. The operative part of the judgment was that the notice of ejectment issued by the defendant be cancelled and the objections of the plaintiffs be allowed. The ground of the decision, to put it sho