Judgement

Consolidated Appeal and cross-appeal from a decree of the High Court (Jan. 21, 1898) modifying a decree of the Subordinate Judge of Purneah (March 31, 1896).

There were four properties in dispute a bazar, an arat, a hat, and a julkur, all situated within the ambit of a zemindary, pergunnah Surjapore, of which the respondents were through a purchase from Haidar Reza and Safdar Reza the owners of a specified share.

The question was whether their purchase passed to them a corresponding share in the four properties in suit as being appurtenant to the zemindary; or whether they were indepen dent of the zemindary being held on a different tenure, or at any rate were not included in the respondents purchase.

Law. Rep. 30 Ind. App. 71 ( 1902- 1903) Syed Ashgar Reza Khan V. Syed Mahomed Mehdi Hossein Khan 10

The Subordinate Judge found that all four properties belonged to the zemindary, and that there were no separate tenures, which though alleged had not been evidenced by any documents or grants creating them. He held that they had passed to the respondents under their purchase.

The High Court affirmed the decision as regards three of the properties. But as regards the bazar, they said that " the evidence shews without doubt that it is held as a ryoti tenure, and does not form a portion of the zemindary." They further held that Haidars deed of sale conveyed his share therein, but that " Safdars share therein did not pass under the sale certificate, which was confined in its operation to his zemindary interest."

With regard to the bazar, the High Court relied upon this that " many years ago it was held that the predecessors in title of all the parties to the present suit had a ryoti tenure, with a right of occupancy in that property; that the ground-rent paid was Rs.278; and that the several sharers got their rent in proportion to their respective shares."

Cowell, for the appellant, contended that on the true construction of the conveyances of the shares in the zemindary to the predecessor of the respondents, and upon the evidence of what was done by the parties thereunder, the disputed properties did not and were not intended to pass to them. The evidence shewed that the respondents and their predecessor never had possession thereof, and also shewed that the appellant and his co-defendant, who had purchased them from the same vendors who sold their shares of the zemindary to the respondents, had been and were in possession of them under their purchases, and that they and their vendors had always dealt with them as their own exclusive property, independently of all the co-sharers in the zemindary. The evidence also fully supported the view taken by the High Court as to the ryoti tenure of the bazar. No evidence was given of any act of ownership by any of the co-sharers in the zemindary over any of the four properties other than the receipt of ground-rent in respect of the bazar.

Phillips and De Gruyther, for the respondents, contended that the concurrent findings of the Courts below were right as to three of the properties in suit. The deeds of mortgage and sale and the sale certificate did not purport to except anything from the transfer, and therefore, under Act IV. of 1882, s. 8, passed the whole interest of the transferors. The alleged independent and separate tenures were not proved by any document, and the oral evidence had been concurrently found to be insufficient. The properties in suit accordingly passed by the transfer, and no sufficient ground was shewn by the High Court for excepting Safdars share in the bazar from the operation of the sale certificate.

Cowell replied.

The judgment of their Lordships was delivered by

LORD LINDLEY. The question to be determined on these appeals is the right of the plaintiffs (respondents in the first appeal) to four properties in the possession of the defendants. The Subordinate Judge decided in favour of the plaintiffs. Two of the defendants appealed to the High Court, which affi