Decided on April 21,1953

Purna Chandra Sahu Appellant
Raghu Bariha Respondents


Panigrahi, J. - (1.) THIS appeal arises out of a suit for recovery of possession of certain SIR lands attached to a Thikadari tenure. Plaintiff No. 1 is the son of Ex -Thikadar, Raghu Bariha who is Defendant No. 3 Plaintiff No. 2 is his uncle belonging to the junior branch of the family which had a common ancestor. Defendant No. 2 Lal Sadananda Singh is the Zamindar of Borasambar who had filed a suit for arrears of rent and obtained a decree for rent against Defendant No. 3 and took delivery of possession of the suit lands in execution of that decree. Defendant No. 1 (the Appellant) took a lease of these lands" from Defendant No. 2 and entered upon them in Jyeshta of 1941 which led to the institution of the suit out of which this appeal arises.
(2.) THE trial Court held that the landlord was not entitled to eject the Thikadar from the SIR lands and that, in any case, the Plaintiffs are not bound by the decree against the Thikadar. On appeal Mr. Rao has urged that so far as the first Plaintiff is concerned he should be held to be bound by the decree against his father. It is contended that Defendant No. 3 represented the whole family and that, therefore, Plaintiff No. 1 should be held to have been bound by the decree. Admittedly I Plaintiff No. 2 is a divided co -sharer and has been in possession of the properties in his own right. The village Pandripani, in which the suit lands lie, was acquired by Gangadhar and his son, who were granted a protection certificate in the year 1891. It is also found and not seriously disputed, that the two branches have been separately recorded in respect of the different plots and that they were in separate possession of the suit SIR lands. On a consideration of the oral and documentary evidence the Trial Court found that the junior branch represented by Asharam and his son Pitambar were in separate possession of the B schedule SIR lands since the partition between Asharam and his brother, Balarbhadra, When exactly the partition took place is not certain, but it is clear that in the Dewar Settlement as well as in the Hamid Settlement the shares have been separately recorded It is also apparent from the Settlement records that the protection certificate granted to the Thikadar was withdrawn under Sub -clause (6) of Section 65 -A of the Central Provinces Land Revenue Act. That was during the Hamid Settlement. But though the protection was withdrawn, Raghu continued to be the Thikadar of the village and was sued as such for arrears of rent. There is no question of bin representing the family or of any natural obligation devolving on the sons for their father's failure to pay rent. The plaint has not been brought on the record and only the judgment in the Suit 16 of 1933 filed by the Zamindar, has been exhibited, there is no indication in it that Raghu was sued as representing his family. The trial Court was therefore, right in holding that the decree obtained against the Thikadar was a personal decree which could be executed against him only.
(3.) THE next question is whether in execution of this rent -decree, the family members could be ejected from their possession. The Thikadar could certainly have been ejected from his office, but mere non -payment of rent would not suffice to justify ejectment from the SIR holds. On the other hand, on his being ejected from the office of Thikadar he becomes a tenant of the lands with occupancy rights. This has been discussed at length in Tirtha v. Lal Sadanand Singh, I.L.R. 1 Cutt. 139 by a bench of this Court of which I was a member. The Court below was right in relying on that decision and arriving at the conclusion that though the tenure lapsed to the Zamindar the SIR lands did not revert to him. The Plaintiffs must accordingly be held nab to have lost their right to remain in possession of the lands.;

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