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Case Number

Appeals from Appellate Decree nos. 928 and 970 of 1929, from a decision of F.F Madan, I.C.S, District-Judge of Muzaffarpur, dated the 5th March, 1929, affirming a decision of Mr. Nut Bihari Chatterji, Subordinate Judge of Motihari, dated the 27th July, 1928

Advocates

Permashwer Deyal and Jadubans Sahay, for the appellants.
Sambhu Saran and Aditya Narain Lal, for the respondents.

Judges

Macpherson
Khwaja Mohammad Noor, JJ.

Acts

SECTION 145 CRIMINAL PROCEDURE CODE

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Smart Summary

Judgment Summary — Khwaja Mohammad Noor, J. (with Macpherson, J. concurring)

Factual and Procedural Background

This opinion arises from two second appeals stemming from the same suit instituted by the plaintiffs (respondents) for recovery of possession of certain zerat and bakasht lands in village Parorha. The property ownership was divided among co-sharers: Musammat Balkeshi Kuar held a 4-annas share (subject to widow's interest), Musammat Bhagwati Kuar held 4 annas (acquired later by Bishwanath Missir and others — the defendants first party), and Biswanath Missir and others held 1-anna 4-pies; remaining shares belonged to third parties not relevant here.

Records from revisional and cadastral surveys showed Balkeshi in possession of 9 bighas zerat and 5 bighas bakasht. In November 1921 Balkeshi executed a deed surrendering about 7 bighas of zerat to her co-sharers (defendants first party) and a lease/settlement of 3 bighas 15 cottahs of bakasht to Dharichhan Kurmi (defendant no. 5), the lease reciting a nazrana of Rs. 800. After Balkeshi's death, her reversioners (including Babaji Missir and others) succeeded; the share later fell into arrears and was sold in revenue sale to Kesho-Prasad, who sold it to the plaintiffs by kebala dated 9 September 1924.

The plaintiffs unsuccessfully pursued a criminal proceeding under section 145 Cr.P.C., then sued for recovery of possession and mesne profits, alleging the surrender and settlement were fraudulent and sham, that Balkeshi remained in possession until death, and that they were dispossessed consequent to the section 145 proceeding.

Procedurally: the trial Court decreed for the plaintiffs (holding they were bona fide purchasers and the surrender/settlement were sham). The District Judge reversed the trial Court's factual findings on that point but dismissed the appeal, concluding the revenue sale and purchases were fictitious and fraudulent while the surrender and settlement were effective and in possession of defendants; he nonetheless held such alienations were beyond a Hindu widow's powers and could be questioned by reversioners. The defendants appealed (Second Appeal nos. 928 and 970 of 1929). The present opinion disposes of those appeals.

Legal Issues Presented

Whether the plaintiffs could succeed in a suit for recovery of possession by challenging the surrender and settlement executed by a Hindu widow (Musammat Balkeshi Kuar), i.e., whether that relief was properly founded on the pleadings and evidence in the suit.
Whether the surrender of zerat land by a co-sharer widow to other co-sharers (defendants first party) constituted an alienation beyond the widow's power, or whether it was a permissible arrangement between co-sharers (with the remedy for objection being partition or compensation).
Whether the settlement/lease of bakasht land by the widow created a right of occupancy in favour of the settlors (defendants second party) that could be enforced against the plaintiffs.
Whether a suit for possession against a co-sharer (in the circumstances of this case) was maintainable, or whether the correct remedy was a partition suit.

Arguments of the Parties

Plaintiffs' (Respondents') Arguments

The surrender and lease relied upon by the defendants were fraudulent and sham; the recitals were incorrect and no nazrana had been paid.
Balkeshi continued in possession of the lands until her death, and the plaintiffs (as purchasers at the revenue sale) were dispossessed as a consequence of the section 145 proceedings.
Implicitly, plaintiffs sought to recover possession on the basis that the lands were in Balkeshi's possession up to her death and then in possession of the purchaser at the revenue sale.

Defendants' Arguments

Defendants First Party (Missirs and co-sharers)

Although the zerat lands were recorded in Balkeshi's name, they maintained they were jointly held by the proprietors of 9-annas 4-pies and that Balkeshi surrendered possession of zerat lands in favour of co-sharers; they have been in possession as co-sharers since the surrender.
They also questioned the plaintiffs' title, alleging the revenue sale and subsequent sale to the plaintiffs were fraudulently brought about by one of the reversioners to deprive others.
Argued that the surrender of zerat cannot be characterized as an alienation by a Hindu widow that can be set aside by the plaintiffs.
Contended that they asserted no title higher than co-sharer ownership and that their possession was as co-sharers; if they occupy land in excess of share they would be liable to compensate or give up excess on partition.

Defendants Second Party (Kurmi defendants)

Asserted that the bakasht land had been settled by Balkeshi with Dharichhan Kurmi and that, being settled raiyats, they had acquired a right of occupancy in the land as settled raiyats.
Argued that the settlement was a bona fide raiyati settlement and created occupancy rights against subsequent purchasers.

Appellants' (Counsel) Specific Legal Arguments at Hearing

Mr. Parmeshwar Dayal (for appellants) contended that the right to ignore or set aside an alienation by a Hindu widow is a personal right of a reversioner and cannot be exercised by his heir or by an assignee; therefore, successors or purchasers cannot now question transactions not challenged by the reversioners.
Mr. Sambhu Saran (for respondents) contended that the right of reversioners to ignore a widow's alienation can be exercised by a purchaser at a revenue sale as well as by an assignee; he also argued that in some authorities a suit for possession against a co-sharer may be maintainable.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Midnapore Zamindary Company, Ltd. v. Naresh Narayan Roy (Privy Council)	Where lands are held in common by co-sharers, a co-sharer may cultivate any part not cultivated by another co-sharer in a proper manner; such exclusive use does not oust co-sharers from their proprietary rights. The remedy for disagreement is partition; no jote or permanent occupancy rights arise merely from such exclusive use.	The Court relied on this principle to hold that the surrender of zerat by Balkeshi to the co-sharers was not an ouster or exclusive alienation; co-sharers' possession as such does not defeat other co-sharers' proprietary rights and the proper remedy for contesting exclusive use is partition or compensation, not ejectment in this suit.
Watson and Company v. Ramchund Dutt (Privy Council) — earlier decision referred to	Referenced as an earlier authority underpinning the principle that exclusive use by a co-sharer does not amount to ouster of other co-sharers.	Cited as the basis for the observation in Midnapore; used to support the view that co-sharer exclusive occupation does not create permanent occupancy rights adverse to other co-sharers.
Rai Baijnath Goenka v. Ajablal Jha (This Court)	Where a co-sharer is in possession of kamat lands in excess of his share under a private arrangement among co-sharers, he is not liable to account for profits to the co-sharer who has less land than his entitlement (in that private arrangement context).	Used to support the conclusion that private arrangements among co-sharers placing one in exclusive occupation are not lightly disturbed; the plaintiffs' remedy was partition, not a simple possessory suit against a co-sharer.
Durga Charan Acharjee v. Khundkar Enamul Hug Mookerjee	Where a defendant by mutual arrangement with co-sharers is placed in exclusive occupation representing his share, such arrangement cannot equitably be disturbed by plaintiffs unless they seek partition of the entire estate.	Applied to reinforce that exclusive occupation pursuant to mutual arrangement between co-sharers should be challenged by partition proceedings rather than by the type of ejectment suit the plaintiffs brought.
Varada Pillai v. Jeevarathnammal	Authority dealing with circumstances under which possession of a co-sharer may be adverse (Madras case).	The Court found this precedent inapplicable on facts: the Madras case circumstances did not match the present matter, so it was not followed.
Manji v. Ghulam Muhammad	Authority relied upon in support of maintaining suits involving co-sharers (Lahore case cited).	The Court observed the Lahore case concerned joint possession where a co-sharer asserted exclusive title and denied others — facts not matching the present matter — and therefore declined to follow it here.
Ram Harakh Pandey v. Chunni Singh	Cited among authorities about suits involving co-sharers and possession of khudkasht/kamat lands.	The Court noted the Allahabad single-judge case was not clear and that its facts (plaintiff's sole khudkasht possession) did not appear in the present record; the Court declined to follow it as precedent for this case.
Raghubar Singh v. Jethu Mahton	Illustrates that where a widow had granted a mokarrari (occupancy holding) a court could ignore the rent fixed by the widow and fix a fair equitable rent on proper suit.	The Court distinguished that case (mokarrari/occupancy holding) from the present case where the widow granted a lease of bakasht land to a raiyat; nonetheless it relied on the principle that if rent fixed by the widow is inadequate, plaintiffs could on a proper suit seek a fair equitable rent, ignoring the widow's fixed rent.

Court's Reasoning and Analysis

The Court proceeded in several analytical steps, strictly grounded in the record and pleadings:

Misjoinder: The Judge noted an initial procedural defect — misjoinder of parties and causes of action (two different sets of defendants not connected were sued together) — but observed that because the suits were tried and decided it was unnecessary to further consider that point.
Unnecessary determination of bona fides of revenue sale: The Court declined to adjudicate the contested issue of the bona fides of the revenue sale and subsequent purchase by the plaintiffs because neither party pressed that point before the Court and the determination was unnecessary to resolve the appeals.
Pleading and basis of suit — error below: The Court found that the District Judge decided the case on a novel ground (the widow's lack of power to alienate), a point that was not pleaded by the plaintiffs in the plaint, not raised in the written statement as an issue to be met, nor argued at trial. The Court held that the plaintiffs' suit was based on possession facts (that Balkeshi remained in possession until death and thus the suit was not one to ignore or set aside a widow's alienation). Because defendants had no opportunity to meet a claim to ignore widow's alienations (by proving legal necessity, defenses, etc.), it was erroneous for the District Judge to permit that question to be raised for the first time on appeal and to decide the case on that ground.
Defendants First Party (zerat surrender) — nature of the transaction and remedy: The Court analyzed the nature of the surrender by Balkeshi of zerat land to co-sharers. It held that such a surrender, made to co-sharers where co-sharers asserted co-proprietary rights, could not by any stretch be treated as an alienation by a Hindu widow disposing of proprietary rights; a widow need not personally cultivate zerat and may make over land to co-sharers in proportion to their share if she is actually cultivating in excess. The Court applied co-sharers jurisprudence (Midnapore, Watson, Rai Baijnath Goenka, Durga Charan Acharjee) to conclude that exclusive occupation by a co-sharer pursuant to arrangement does not constitute an ouster and that the correct remedies for dispute are partition or compensation — not an ejectment suit of the kind instituted by the plaintiffs. Thus, the plaintiffs could not secure possession from a co-sharer without instituting a partition suit.
Defendants Second Party (bakasht settlement) — raiyati settlement and occupancy rights: Regarding the bakasht lease/settlement of 3 bighas 15 cottahs at Rs. 23 annual rent, the Court held that a Hindu widow in management of the estate is ordinarily entitled to make a raiyati settlement provided the transaction is bona fide and not intended to defraud reversioners or substantially depreciate the estate. Nothing of that nature was alleged or proved. The defendant kurmis claimed to be settled raiyats and therefore had a right of occupancy under the settlement; the Court found they had acquired a right of occupancy and were not liable to be evicted. The Court did note, by reference to Raghubar Singh v. Jethu Mahton, that if rent were inadequate, plaintiffs could on a proper suit seek a fair and equitable rent ignoring the widow's fixed rent, but distinguished that case as involving mokarrari (occupancy holding) rather than a lease of bakasht to a raiyat.
On authorities relied upon to sustain a possessory suit against a co-sharer, the Court reviewed the cited cases and found them inapplicable on the facts before it; accordingly it declined to apply them to sustain the plaintiffs' remedy.
Conclusion of analysis: Because the plaintiffs' case rested on possession facts (and not on ignoring a widow's alienation), and because the appropriate remedies against co-sharers in exclusive occupation are partition or compensation, and because the raiyati settlement conferred occupancy rights on the kurmi defendants, the trial Court's decree in favour of the plaintiffs could not stand.

Holding and Implications

APPEALS ALLOWED; the plaintiffs' suit is dismissed with costs.

Direct effect:

The appeals (Second Appeal no. 928 of 1929 on behalf of defendants first party and Second Appeal no. 970 of 1929 on behalf of defendants second party) were allowed.
The plaintiffs' suit for recovery of possession and mesne profits was dismissed with costs throughout.
Only one set of costs will be allowed for the trial Court; those costs are to be distributed between defendants first party and second party in the proportions of Rs. 1,432 and Rs. 772 respectively.

Broader implications: The Court did not purport to lay down a new general rule of law; rather it applied existing co-sharer principles and established authorities to the facts. The opinion emphasises procedural propriety (that a ground not pleaded or tried should not be allowed for the first time on appeal) and confirms that disputes about exclusive use among co-sharers are typically remedied by partition or compensation rather than simple possessory suits. If the plaintiffs wish to challenge adequacy of rent or other incidents of the settlement, those remedies must be pursued in appropriately framed suits.

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Biswanath Missir v. Ram Prasad Tewari

Khwaja Mohammad Noor, J.:— These two appeals arise out of the same suit instituted by the plaintiff-respondents for the recovery of possession of some pieces of zerat and bakasht lands. The facts are these:— In village Parorha one Musammat Balkeshi Kuer held 4-annas share, another 4-annas was held by a Musammat Bhagwati Kuar, and 1-anna 4-pies by Biswanath Missir and others, the defendants first party in this suit. The remaining shares belong to third parties and we are not concerned with them in the present litigation. The 4-annas share of Bhagwati Kuar was acquired by Bishwanath Missir and others, defendants first party, and thus they became owners of 5 annas 4 pies in the village. During the Revisional Survey as well as at the time of the Cadastral Survey, 9 bighas of land in the said village was recorded as zerat in the possession of Musammat Balkeshi Kuar and 5 bighas bakasht malikan was also recorded to be in her possession. About November, 1921, Balkeshi surrendered 7 bighas and odd of the zerat lands in favour of her co-sharers, the defendants first party, by a deed dated the 19th November, 1921. She also settled 3 bighas 15 cottahs of the bakasht lands with Dharichhan Kurmi, defendant no. 5 and the lease recites that Balkeshi received a nazrana of Rs. 800. Subsequently Balkeshi who was holding only a widow's estate in the share died and was succeeded by Babaji Missir and others, the reversioners of her husband. The said share afterwards fell into arrears of Government revenue and was sold by auction to one-Kesho-Prasad, who, in his turn, sold it to the plaintiffs under a kebala dated the 9th September, 1924. The plaintiffs thus became the proprietor of the 4-annas share of the village formerly held by Balkeshi Kuar. It seems that the plaintiffs wanted to take possession of the zerat lands which Balkeshi had surrendered in favour of Bishwanath Missir and of the bakasht land which she had settled with Dharichhan. There was a criminal case under section 145 Criminal Procedure Code and plaintiffs were unsuccessful. Thereupon they instituted the present suit for recovery of possession of the aforesaid lands with mesne profits. Their case in the plaint was that the surrender and the lease relied upon by the defendants were fraudulent and sham, and the recitals contained therein were incorrect and wrong and no nazrana was paid for the settlement. They alleged that Balkeshi Kuar continued in possession of the land tilt she died and subsequently it came into possession of the reversioners. They further alleged that they were dispossessed in consequence of a proceeding in the section 145 case referred to above.

I must at the outset note that in this case there was a misjoinder of parties and causes of action. Two different sets of defendants in no way connected with one another, were sued in one suit. However, as the suits have been tried and decided it is not necessary to consider the point further.

The defendants first party, the Missirs, contended that the zerat lands though recorded in the name of Balkeshi Kuar only, were the joint property of the proprietors of 9-annas 4-pies, and as after the revisional survey they were prepared to institute suits for the correction of the entry in the record-of-rights, Musammat Balkeshi Kuar surrendered in their favour the possession of the zerat land to the extent of their share, and they have been in possession of it as part proprietors of the village. This is recited in the deed of surrender also. Similarly the Kurmi defendants contended that the bakasht land was settled with them by Balkeshi Kuar and that they, being settled raiyats of the village, had acquired a right of occupancy therein.

The defendants first party, the Missirs, also question the plaintiffs' title and right to bring the suit on the ground that the revenue sale and subsequent sale to the plaintiffs were fraudulently brought about by one of the reversioners in order to deprive the other reversioners of their share.

The trial Judge decreed the suit holding that the plaintiffs were bona fide purchasers of the share of Balkeshi Kuar and the revenue sale and the subsequent sale to the plaintiffs were valid, and that the surrender of the zerat land in favour of the defendants first party and the settlement of bakasht land with defendants second party were sham transactions and were not given effect to and that Balkeshi Kuar remained in possession of the lands till her death. On appeal the learned District Judge reversed the above findings of the trial. Judge but dismissed the appeal. He held that the revenue sale and the purchase by Kesho Lal and subsequent sale by Kesho to the plaintiffs were fictitious and fraudulent and that the surrender and the lease relied upon by defendants first and second parties were given effect to and they were in possession of the land in question but that such a surrender and settlement were beyond the powers of a Hindu widow and they could be questioned and ignored by the plaintiffs. He, therefore, upheld the decree of the trial Court, though on altogether different grounds.

The defendants have now preferred these second appeals. Second Appeal no. 928 of 1929 is on behalf of the defendants first party and Second Appeal no. 970 of 1929 is on behalf of defendants second party. There are some special features in the two appeals but before I come to them I like to dispose of the points which are common.

I do not propose to discuss the question of the bona fides or otherwise of the revenue sale and subsequent purchase by the plaintiffs. The trial Court held them to be bona fide; the learned District Judge held otherwise. Neither party has addressed us on this point and in my opinion the determination of this question is unnecessary for the purposes of this case.

The learned District Judge has decreed the plaintiffs' suit entirely on the ground that the surrender of zerat in favour of the defendants first party and the settlement of bakasht with the defendants second party were beyond the powers of Balkeshi Kuar, who only held a widow's interest in the 4-annas share of the village. Elaborate arguments have been addressed to us on behalf of both sides on this point. Mr. Parmeshwar Dayal on behalf of the appellants contended that the right to ignore, or set aside the alienation by a Hindu widow is the personal right of a reversioner, and cannot be exercised by his heir or by an assignee, and he argued that as Babaji Missir and others; who had succeeded Balkeshi Kuar as the reversioners of her husband, did not question her aforesaid transactions, they cannot now be questioned by the plaintiffs who are the representatives of the purchaser of the share at a revenue sale. On the other hand Mr. Sambhu Saran on behalf of the respondent contended that the right of the reversioners to ignore an alienation of a Hindu widow can be exercised by the purchaser of the estate at a revenue sale as well as by the assignee of the reversioners. Various decisions have been cited by both parties but I do not propose to discuss them. In my opinion the question of the right of alienation by a Hindu widow and a right of a reversioner or his successor or assignee to, ignore that alienation does not arise in this case. This was not the basis of the plaintiffs' suit. They based their suit on the allegation that the lands in dispute were in possession of Balkeshi up till the time of her death and were then in possession of the purchaser at the revenue sale. Therefore the suit was not one for ignoring or setting aside the alienation by Balkeshi. The defendant had no opportunity to meet such a case. If this had been the basis of the suit, it would have been open to the defendants to prove the legal necessity, etc., the usual defences which could lawfully be set up in a case in which the plaintiffs seek to ignore or set aside the alienation by a Hindu widow. A new case was started before the learned lower appellate Court, and, in my opinion, the learned judge was in error in allowing this matter to be gone into for the first time in appeal. In short the learned District Judge has decreed the suit on a ground which was not raised in the plaint, nor met in the written statement nor agitated before the trial Court.

I now take up the special points of each appeal separately. I first deal with appeal no. 928 of 1929 which is on behalf of defendants first party. In this case Balkeshi Kuar surrendered a portion of the zerat in favour of her co-sharer landlord and according to the finding of the learned District Judge the defendants first party have been in possession of it since the date of the surrender. This surrender can by no stretch of imagination be called an alienation of the property by a Hindu widow. There is no compulsion on a Hindu widow to go on cultivating the zerat and bakasht lands herself, or if there are other co-sharers in the village not to make over the land to them proportionate to their share, if she finds that she is actually cultivating such lands in excess of her due share in the estate. By surrendering a portion of the zerat land in favour of the defendants first party she has in no way diminished her 4-aniras share of the village. I am, therefore, clearly of opinion that the question of alienation by a Hindu widow does not arise in a case like this. The defendants do not claim in the land in dispute, any higher right than that of co-sharer landlord. In the case of Midnapore Zamindary Company, Ltd. v. Naresh Narayan Roy their Lordships of the Privy Council have laid down that “Where lands in India are so held in common by co-sharers each co-sharer is entitled to cultivate in his own interests in a proper and husband like manner any part of the lands which is not being cultivated by another of his co-sharers, but he is liable to pay to his co-sharers compensation in respect of such exclusive use of the lands. Such an exclusive use of lands held in common by a co-sharer is not an ouster of his co-sharers from their proprietary right as co-sharers in the lands. When co-sharers cannot agree as to how any lands held by them in common may be used, the remedy of any co-sharer who objects to the exclusive use by another co-sharer of lands held in common is to obtain a partition of the lands. No co-sharer can, as against his co-sharers, obtain any jote right, rights of permanent occupancy, in the lands held in common, nor can he create by letting the lands to cultivators as his tenants any right of occupancy of the lands in them.” The observation is based upon an earlier decision of the Privy Council in Watson and Company v. Ramchund Dutt. In Rai Baijnath Goenka v. Ajablal Jha this Court held that where a co-sharer is in possession of kamat lands in excess of his share under a private arrangement between the co-sharers, he is not liable to account for profits to the co-sharer who has the land less thati what he was entitled to. In Durga Charan Acharjee v. Khundkar Enamul Hug Mookerjee, J. held that if a defendant who was interested in all the lands of the estate, was by a mutual arrangement with his co-sharers, placed in exclusive occupation of the lands as representing his share, that arrangement cannot equitably be disturbed by the plaintiffs, unless they seek a partition of all the lands comprised in the estate.” If the land including the disputed land in possession of the defendants first party are in excess of their share (5-annas 4-pies) they will be liable to pay to the plaintiffs compensation for the same, or they will on partition, be liable to give up such portion of it as is in excess of their share. The learned District Judge is in error in thinking that the entry of possession of Balkeshi Kuar in respect of the zerat land shows that it was her exclusive property. Such a possession is not an ouster of the co-sharers.

Mr. Sambhu Saran contended that the defendants first party and their vendor Bhagwati Kuar were not entitled to any zerat land in this village and that by some private arrangement zerat land in another village were allotted to them in lieu of their share of the zerat land of this village. This may be so but we have no material before us to come to any conclusion on this point. These are the matters which will be gone into in a properly framed partition suit which, I understand, is now pending or which may subsequently be brought by any of the co-sharer landlords. In the present suit, as I have said, the position is that one co-sharer landlord has instituted a suit for ejectment against another co-sharer landlord, who is in possession of a portion of the zerat land. This, in my opinion, he cannot secure without instituting a partition suit. The plaintiffs' remedy was to bring such a, suit and when the suit is brought if will be decided whether or not the defendants first party are entitled to have any zerat land in this village, or, if so, to what extent and how much of the zerat land in their possession they should give up in favour of the proprietor of the 4-annas share. So also the defendants first party may in a proper suit be liable to pay compensation to the plaintiffs.

Mr. Sambhu Saran contended that a suit for possession against a co-sharer landlord is maintainable. He relied upon Varada Pillai v. Jeevarathnammal, Manji v. Ghulam Muhammad and Ram Harakh Pandey v. Chunni Singh. The first two cases have no application to the facts of the case. In the Madras case the question decided was that under certain circumstances the possession of a co-sharer may be adverse. This does not arise in the present suit. In the Lahore case the suit was for joint possession of a piece of land which was in possession of a co-sharer who asserted exclusive title and denied the title of other co-sharers. This also is not the case here. The defendants do not deny the plaintiffs' title and they claim no higher right than to remain in possession as co-sharers. In fact they alleged joint possession with Balkeshi Kuar. The Allahabad case is somewhat similar. It was held that the plaintiff who was in sole possession of a piece of khudkasht land and was dispossessed by his co-sharers was entitled to be restored to possession. The facts of this case are not clear from the judgment which is of a single judge. The land was said to be the sole khudkasht of the plaintiff of which there is no evidence in this case. For these reasons I am finable to follow it.

I now come to appeal no. 970 of 1929 which is on behalf of the defendants second party. In this case the latter relies upon a settlement made by Musammat Balkeshi Kuar. Ordinarily a Hindu widow in due course of management of her husband's estate is entitled to make raiyati settlement provided that the transaction is bona fide and is not intended to defraud the reversioners, or does not in any way depreciate substantially the value of her husband's property. Nothing like this is either alleged or proved in this case. In this case land measuring 3 bighas 15 cottahs has been settled on an annual rent of Rs. 23, but the question, of adequacy of rent has not been gone into. The defendants claimed to be settled raiyats of the village and as such they have a right of occupancy in the land for the time being held by them. In my opinion the defendants have acquired a right of occupancy under a settlement from the widow, and they are not liable to be evicted. Though this was a settlement by a co-sharer, other co-sharers do not object to it. If the rent fixed is inadequate the plaintiffs can, on a proper suit, have a fair and equitable rent settled for the land, ignoring the rent fixed by the widow, Mr. Raghubar Singh v. Jethu Mahton but in that case the widow had granted a mokarrari of an occupancy holding. That is quite different from granting a lease of bakasht land to a raiyat. The appeals are allowed and it is ordered that the plaintiffs' suit be dismissed with costs throughout. Only one set of costs will be allowed for the trial Court, and it will be distributed between the defendants first party and second party to the proportion of Rs. 1,432 and Rs. 772.

Macpherson, J.:— I agree.

Appeals allowed.

Biswanath Missir v. Ram Prasad Tewari

Judgment Summary — Khwaja Mohammad Noor, J. (with Macpherson, J. concurring)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiffs' (Respondents') Arguments

Defendants' Arguments

Defendants First Party (Missirs and co-sharers)

Defendants Second Party (Kurmi defendants)

Appellants' (Counsel) Specific Legal Arguments at Hearing

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Biswanath Missir v. Ram Prasad Tewari

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