NIADAR Vs. MMOHAMMAD AHMAD

JUDGEMENT

(1.) In this second appeal findings of fact are attacked and there is only one point of law. The learned Judge of the lower appellate Court held in a suit for declaration by the plaintiff that the plaintiff was the zemindar of the plots in suit and the defendants were his tenants. I he point of law is whether a tenant of a certain holding after purchase of a fractional share in the proprietorship of the village can become khudkast holder of the holding or must he remain tenant as before. This point has been decided against the tenant in Abdul Hasan Khan V/s. Bhura [1906] A.W.N. 226. A previous Bench ruling of 1901 in the case of Mahabir Singh v. Ahsanullah [19011 A.W.N. 53 was not so definite. There have, however, been previous rulings of a Bench of two Judges in this Court referred to in the 1906 ruling which definitely held that the tenant who purchased a share in the zamindari property did not thereby cease to be tenant of his holding even to the extent of the share purchased by him. The point of law is therefore settled.

(2.) As to facts the lower appellate Court has held that the defendants were tenants at the time of purchase. The reason given is that in 1331 Fasli which commenced in July they were entered in the village records as tenants while the purchase was not made till 29 August 1923. I do not see any flaw in this reasoning. The defendants themselves do not allege in their grounds of appeal that they were not tenants prior to their purchase. In the first three grounds what they have alleged is that the question of the cultivation prior to the purchase was immaterial and that the inference drawn by the lower appellate Court from the entry in the record of 1331 Fasli was not logical. This is an evasion of the main issue of fact.

(3.) In ground 4 it is submitted that the suit ought to have failed because of an undertaking given by the plaintiff. There was a distraint suit brought by the defendants with respect to other plots and that suit was decreed. During the pendency of this suit the plaintiff of this suit put in an application for stay under Section 10, Civil P.C., with a further prayer that the present suit may be decided according to the decision of the distraint suit. This application was presented by a mukhtar and there was no undertaking given by the plaintiff himself. There was no connexion between the two suits and the mukhtar obviously made an error of, law.