Agarwala, J. - (1.) THIS is a Plaintiff's appeal arising out of a suit for profits brought in the Revenue Court in respect of an eight annas share in zamindari property in village Hasanganj for the years 1348 to 1351 F.
(2.) THE following pedigree will be of help in understanding the facts of the case: - Mohan Singh _________________________________________________________________ / / Ram Singh Ram Baksh Singh / | Ram Adhin Singh | Plff 4. | | _________________________________________________________________ Ram Jit Bahadur Pirthiraj Ram Narain Singh, Singh Bharosey, Defdt. 1. Defdt. 2. Defdt. 3. Detdt. 4. The Plaintiffs' case was that Mohan Singh, the ancestor of Ram Adhin Singh, Plaintiff No. 4, and of the Defendants was the owner of the proprietary rights, in village Hasanganj in dispute and certain other properties. He executed a will (Ex. 1) on the 25th October, 1951, in respect of this property and gave to Ram Singh and Ram Adhin Singh an eight annas share in the property and the remaining eight annas share to the branch of his other son, Ram Baksh Singh. Ram Singh, Ram Adhin Singh and the sons of the latter filed a suit against Ram Baksh Singh, his sons Ram Narain Singh, Jit Bahadur Singh, Pirthiraj Singh, Ram Bharosey Singh and the son of Ram Narain Singh, on the 20th May, 1932, for partition of the family property including the proprietary rights in village Hasanganj. In this suit the Plaintiffs alleged that the proprietary rights in village Hasanganj were owned by Mohan Singh who by his will had bequeathed a half share to Ram Singh and Ram Adhin Singh, Plaintiffs, and the remaining half to Ram Baksh Singh and his sons, the Defendants. Some other property which had been acquired (sic)ion the name of Ram Baksh Singh was also included in the suit and in respect of that property the Plaintiffs' case was that it was purchased by Mohan Singh or by Ram Baksh Singh from joint family funds and, therefore, partook of the character of joint family property. This suit was resisted by the Defendants. It was admitted by them (and this is important to remember that the proprietary rights in village Hasanganj were indeed owned by Mohan Singh and that he had made a will in respect of them in favour of Ram Singh and Ram Baksh Singh as alleged by the Plaintiffs but they denied the Plaintiffs' right to a half share in those items of the other properties in suit which had been acquired in the name of Ram Baksh Singh. Their case was that Ram Baksh Singh was the sole owner of these items of the property as he had acquired them with his own separate funds. A list of the property sought to be partitioned was attached to the plaint and in this list, the proprietary rights in Hasonganj village were shown at No. 4. While admitting the Plaintiffs' case with regard to the Hasanganj property in the body of the written statement, the Defendants also made out a list of the properties in dispute purporting to be in the same order as the list attached to the plaint and against each of the items in the lists, they noted whether the particular property belonged to the joint family or to Ram Baksh Singh alone. By mistake in this list the property at No. 14 though shown as Hasanganj was shown as not the proprietary rights of village Hasanganj but some other rights and the area was given as 3 bighas 16 biswas only. This description was probably taken from the area in respect of the immediately proceeding property of village Dhaura which was shown at No. 13 having an area of 3 bighas as is proved from the fact that in the remarks column against property No. 14, it was mentioned that this property is of village Dhaura. The remark column further mentioned the fact that it was acquired by Ram Baksh Singh. This remark could only apply to Dhaura property and not to Husanganj property. It is conceded before us that this was really a mistake However, the trial Court held that all the property that was acquired in the name of Ram Baksh Singh was also joint family property and, therefore, the Plaintiffs had a half share therein and decreed the suit in toto, Ram Baksh Singh and his sons appealed to the late Chief Court of Avadh. In the appeal it was held that the properties acquired by Ram Baksh Singh were acquired by him from his own separate funds and were his own separate property, in the body of the judgment it was indeed mentioned that the Hasanganj property was not in dispute and that each of the parties owned a half share in it. As the property, No. 14 mentioned in the list accompanying the written statement was mistakenly described as a property belonging to Ram Baksh Singh alone, the judgment of both the Courts, the trial Court as well as the appellate Court while mentioning the items of property which were disputed by the defendants as belonging to them included the property at No. 14 also. Their mistake ultimately crept into the decree which showed that the Plaintiffs' suit with regard to property both was dismissed. No body noticed this mistake at that time and both parties continued even after the decree of the late Chief Court to treat Hasanganj property as belonging to both branches half and half. Soon after the judgment of the Chief Court, an application for appointment of a lambardar in respect of the Hasanganj property was made in 1938 and Ram Adhin Singh son of Ram Singh and not Ram Baksh Singh was appointed lambardar. This could only be on the hypothesis that Ram Singh and Ram Adhin Singh were joint owners in the property. In 1937 a three annas share in the Hasanganj property was sold by Ram Singh and Ram Adhin Singh to two persons Ram Narain and Raja Ram who are Plaintiffs 1 and 3 in the present suit. Ram Baksh Singh brought a suit for pre -emption on the allegations that Ram Singh and Ram Adhin Singh himself were cosharers in village Hasanganj and that the transferees were not co -sharers therein. The suit was decreed but since Ram Baksh Singh did not deposit the preemption money. It was ultimately dismissed. Then a suit for profits was brought in the year 1940 by Ram Narain and Raja Ram the purchasers of a three annas share against Ram Adhin Singh and the sons of Ram Baksh Singh. Ram Baksh Singh appears to have died in he meanwhile. In this suit the sons of Ram Baksh Singh again admitted that the parties were co -sherers in the property but alleged that the collection was made by Ram Adhin Singh and that, therefore, they were not liable. The suit was ultimately decreed against Ram Adhin Singh only. Then Ram Adhin Singh sold a one annas share in the property to one Dwarka Prasad who gifted it to Ram Narain and Raja Ram, Plaintiffs 1 and 3, so that Plaintiffs 1 and 3 now became the owners of a four annas share in the property while Ram Adhin remained the owner of only four annas, the other eight annas being owned by the sons of Ram Baksh Singh, Salik Ram Plaintiff No. 2, had a decree against Ram Adhin Singh. He purchased a three annas share out of the remaining four annas share of Ram Adhin Singh in village Hasanganj on the 14th February, 1943. Delivery of possession over the property was made to Salik Ram and then he applied for mutation of his name in the Revenue Court. It was for the first time in these proceedings that the sons of Ram Baksh Singh discovered the discrepancy in the decree of the late Chief Court and were not allowed to take advantage of it. They objected to mutation being effected in favour of Salik Ram on the ground that they had been declared sole owners of the whole of Hasaganj. This objection, however, was dismissed and Salik Ram's name was mutated over three annas share in the property. Then the sons of Ram Baksh Singh made an application for the correction of the revenue papers basing their case upon the decree of the Chief Court and relying upon the aforesaid mistake in that decree. This application was made on the 10th February, 1943. It was ultimately allowed by the Board of Revenue on the 10th August, 1945 but during this interval the suit which has given rise to the present appeal was instituted by Ram Adhin Singh and the three purchasers from him, all representing an eight annas share in the property, for profits of the property to the extent of their share.
(3.) IN this suit the main defence of the Defendants Respondents (the sons and grand sons of Ram Baksh Singh) was that because of the decree of the Chief Court the Plaintiffs could not be said to be owners of a half share in Hasanganj. An issue of proprietary title having been raised, it was sent to the civil court for decision. The learned Civil Judge to whom the issue was referred, accepted the plea of the Defendants Respondents and held that the Appellants had no share is the property. It may be mentioned here that during the pendency of the suit, the Plaintiffs also made an application to the late Chief Court for amendment of the decree on the ground that there was an accidental or clerical error in the decree. This application was made on the 1st May, 1944. It was dismissed on the 6th August, 1945, minly on the ground that the Plaintiffs had sought the relief after great deley and it was not clear to the Court that it was a case of accidental error or omission. The Court did not go into the merits of the case. The learned Civil Judge relied upon the dismissal of the amendment application also in arriving at his conclusion. This appeal was filed in this Court in 1946 and it has been pending since then and has now come up for disposal after seven years.;