JUDGMENT

Zafar Ali, J. - The defendant-appellant is the ala malik of the land in dispute and the land was in possession of the adna maliks, Indar and Shaman. In 1890 a mutation order was made at the instance of Indar and Shaman according to which Sih and Bishnun were shown as adna maliks in possession along with Indar Shaman. Indar and Shaman both died some time before 1914, and in that year Fauja, etc (the plaintiff-respondent in the present case) brought a suit for possession of the land stating that the land was ancestral, qua them, that they were the reversioners of Indar and Shaman and that the gift made to Sih and Bishnun was not binding upon them. This suit ended in a compromise and a decree was passed in accordance therewith. The terms of the compromise were that Sih and Bishnun would remain in possession of the land so long as they should live and Fauja etc., would succeed to the whole of it if Sih and Bishnun should die childless, and to half of it if they should leave male issue. Sih and Bishnun died childless in August 1921, and the land was mutated in the name of ala malik on the ground that the line of adna malik had become extinct

2. Fauja, etc., sue for possession of the land. According to the wajib-ul-arz the land of a sonless adna malik must revert to the ala malik unless the former should have alienated it by gift or will.

3. As regards Fauja, etc. plaintiffs, it was found that they were not the collaterals of Indar and Shaman and so the land was not ancestral qua them. That being so they had no locus standi to challenge the gift made by Indar and Shaman to Sih and Bishnun. But Fauja, etc., based their claim on the said entry in the Wajib-ul-arz and contended that the alienation by compromise was equivalent to a gift or will. This contention found favour with the learned District Judge and he decreed their suit. The defendant appeals.

4. I am of opinion that by no stretch of language or imagination the compromise can be said to be equivalent to a gift or will. It is clear that Fauja, etc., had no right whatsoever to challenge the gift to Sih and Bishnun, but the latter, in order to get rid of the litigation, brought it to an end by a compromise. They thereby neither made a will nor a gift. They evidently had not the patience and capacity, or perhaps the necessary funds, to fight out the case and to extricate themselves from that predicament and, therefore, sought refuge in a compromise.

5. Evidently they did so under compulsion. A gift or will is on the other hand a voluntary act.

6. The next question is: Could the terms of the compromise be operative as against the defendant or, in other words, was an adna malik competent to alienate his land or divert succession in any way other than by will or gift. Nor is it clear that according to the Wajib-ul-arz the power of alienation that was recognized was by will or gift. If an adna malik can alienate [his land by will or gift it does no follow, in the absence of evidence to the contrary, that he is also competent to sell or mortgage or alienate it in any other way.

7. I, therefore, accept the appeal and, setting aside the order of the lower appellate Court, restore that of the trial Court The plaintiffs to pay the appellant's costs throughout.