P.L. Bhargava, J. - (1.) The facts which have given rise to this appeal are set out in the order of remand, dated 27th October 1949, by which certain issues were remitted to the trial Court for findings. On the first five issues remitted, the trial Court has returned the following findings : "All the plots in dispute except 691/1/146 karis were being cultivated by Mt. Govindi, the plaintiff, at the commencement of the Agra Tenancy Act (III [3] of 1926) within the meaning of Section 4, Clause (d) of the said Act. The dastbardari relates to the plots in dispute covering an area of 3652 Karis. It is the total area of 4749 Karis to which the suit relates. Deoki, Badri and Raghubar were not members of a joint Hindu family at the time of the death of Deoki. Badri and Raghubar were separate at the time of the dastbardari. The entire land in dispute was covered by the usufructuary mortgage executed by Badri and Raghubar in favour of Jamuna and Sheo Kunwar, on 18th February 1890 and the mortgagees did not get the actual cultivatory possession but they were paid rent in respect of the same by the ex-proprietors."
(2.) No objection has been raised by either party to these findings and they are accepted as correct. Learned counsel for the defendant-appellant has conceded that as the plots in dispute other than plot No. 691/1 were recorded in the agricultural year immediately preceding the agricultural year, in which Act III [3] of 1926 came into force as being cultivated by the plaintiff as her khudkasht they will be presumed to be a part of her sir land; but he has contended that the presumption is a rebuttable presumption and it has been rebutted by the evidence on the record. He has argued that Badri having executed a dastbardari in respect of 8 plots and the surrender being in favour of one of the co-sharers, it would enure for the benefit of the entire body of co-sharers, including the appellant. The dastbardari was, however, executed in the year 1910 while the finding is that in the year 1925 the plots other than plot No. 691/1 were being cultivated by the plaintiff-respondent and were recorded as her khudkasht. There was a long interval between 1910 and 1925, and during that interval anything might have happened.
(3.) Learned counsel for the appellant has further argued that it has been found by the trial Court that the mortgagees from Badri and Raghubar had obtained possession over the mortgaged property which included three of the plots in dispute and which the appellant had redeemed. The trial Court has, no doubt, found that the mortgagees did not obtain actual cultivatory possession, but it also found that they were realising rent from the ex-proprietary tenants. The redemption appears to have taken place a year or two before 1925; consequently, this fact also has no bearing on the question under consideration.;