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Judgment
Wort, J.—This is the plaintiff''s appeal in an action in which he claimed to resume a jagir or one-third thereof. The jagir was returnable on the extinction of the male heirs of the grantee and in this case the grantees were three persons, Hira Singh, Kuber Singh and Lalu Tewari. The original grant was made by Maharaja Mani Nath Singh under a sanad dated Baisakh Badi 8, 1848 Sambat to four persons, Dasraj Singh, Udit Singh, Dalel Singh and Parsuram Tewari. The son of Udit Singh died without issue and then the grant was renewed by the grant to the 3 persons I have named. Hira Singh was the grandson of Dalel Singh. Kuber Singh was the grandson of Dasraj Singh and Lallu Tiwari was the grandson of Parsuram Tiwari, The plaintiff is the proprietor of the Ramgarh Estate and the six villages with, regard to which is the grant was made was known as Lot Barga.
One of the contentions of the defendants in the court below was that the grant to the 3 persons mentioned dated Kartik Sudi 9, 1908 Sambat was not the creation of a new jagir but merely in continuation of the old. But this point has been decided in favour of the plaintiff, the Sub-Judge corning to the conclusion that the grant in 1908 was a new grant; this finding is not now contested by the defendants and indeed the facts as found by the Sub Judge in favour of the plaintiff are not disputed by either party. One of the contentions of the defendant was that the grant was a grant of a joint tenancy. On the other hand the plaintiff contended that it was a tenancy-in-common. The basis of the plaintiff''s claim was that Lallu Tiwari had died without leaving any male issue and, therefore, according to the custom of the estate, a one-third part of the jagir was resumable. It has been held that the son of Lallu Tiwari died in the year 1922 without any male issue. The Sub Judge also decided that the grant was the grant of a tenancy-in-common.
The jagir is not now in the possession of the original grantee but no point arises in this connection. Mr. Susil Madhab Mullick whilst agreeing that the grant was that of a tenancy-in-common, contends that the effect of the grant to those 3 persons was to give them a grant of 3 separate jagirs; that although they may have had unity of title they did not have unity of possession. Some reliance is placed on Section 45 of the Transfer of Property Act, On the contrary Mr. P.R. Das, who appears on behalf of the respondents, argues that the fallacy of the argument of the appellant is contained in the assumption that it was a grant of one-third of the jagir to each of the 3 persons named and that such assumption could not be supported unless there had been a physical division of the property. He contends, for instance, that each of the grantees is liable for the whole rent which was indivisible and that the grant was made in lieu of services and that as the rent was indivisible was the jagir. He admits that the grantees held by distinct titles but there was unity of possession to quote a well known phrase "as none knoweth his own severalty", and that until partition each tenant-in-common has an estate in the whole tenement. Reliance is placed on the case of United Dairies Ltd. v. Public Trustee (1923) 1 K.B.D. 469 : 92 L.J.K. B 326 : 128 L.T. 768 : 67 S.J. 199 : 39 T.L.R. 825 where it was held that in a case of a breach of covenant to repair the damages due to the broach of the covenant were recoverable in full from either of the tenants-in-common. One of the reasons for that decision was that in order to free the assignee of part of the lands from payment of the entire rent he must hold the part in physical severalty. Reliance is also placed for the decision in Birendra Kishore Manikyi v. Bhubneshwari 15 Ind. Cas. 620 : 39 C. 903. In that case the action was an action in ejectment on the ground of the denial by a recorded tenant of the landlord''s title. No each denial had been made by the unrecorded co-sharers in the tenancy and it was held that, although a co sharer tenant who was recorded in the books of the landlord might bind his cc-3harers for the purposes of the tenancy, yet when he repudiated the tenancy he must be taken to have acted beyond the scope of his authority. The judgment was based on the law of agency, but the learned Judges go on to say "there cannot be a forfeiture of the tenancy in part" and held, therefore, that the repudiation by one co sharer did not result in the forfeiture of the whole tenancy.
Some support to this argument addressed to us by Mr. P.R. Das on behalf of the respondents was given in the judgment, to which I have already referred to by Mr. Justice Greer in the United Dairies Ltd. v. Public Trustee (1923) 1 K.B.D. 469 : 92 L.J.K. B 326 : 128 L.T. 768 : 67 S.J. 199 : 39 T.L.R. 825 But the learned Sub-Judge appears to have decided the matter on entirely different grounds and in that, in my judgment, he was right. For this purpose it must be observed that the grant was oral and confirmed by an amalnama by the Maharaja addressed to the tenant and dated Kartik Sudi 9th, 1908 Sambat, corresponding to the 2nd November, 1851, in these words:
It is the order of Maharaja Shri Sambhu Nath Singh Bahadur to the Mahto tenants of villages. The villages in mukarrari to Hira Singh Jamadar, Kuber Singh Jamadar, Ram Tiwari Lalu Jamadar and peons etc., are given in lieu of allowance and on baiswan as per details given below. Total number of villages 6, you shall carry out their orders.
Evidence was adduced by the plaintiff to prove the custom to resume on the failure of male heirs. The learned Judge in the court below has corse to certain conclusions regarding that evidence and these conclusions are not disputed nor indeed is the evidence referred to before us. The learned Judge points out that gome of the witnesses for the plaintiff including Paryag Das, Tilakdhari Prosad and Bholanath Tewari deposed to the effect that jagirs in the Ramgarh Estate were resumable by the proprietor by virtue of a custom on the failure of direct male line of the original grantees. But the first witness attempted to prove that it was resumable even in the case of a share in the jagir, but the other two witnesses did hob support him in this. Certain judgments also were produced in evidence to prove this custom. It is pointed out by the Sub-Judge that these do not assist the plaintiff as three of them which did refer to a custom to resume make no mention of a custom to resume a part of the jagir nor indeed was it the case that there was such a custom to resume a share in the jagir. Nothing more was established before the Sub-Judge than that there was a general custom to resume on the failure of male heirs, and before us this is not disputed. The learned Sub-Judge came to the conclusion that the necessary implication was that so long as there was a male heir in the direct line of any of the original grantees the jagir was not resumable. The only evidence to the contrary was that of Paryag Das, which was considered to re unreliable by the learned Sub-Judge, end he therefore decided that there was an entire failure on the part of the plaintiff to prove such a custom. It is important to point out these findings because they are not disputed by the appellant; buthia arguments are based on what he contends to be the ordinary incidence of a tenancy-in-common in my judgment, however, this view of the case cannot be supported.
I have already pointed out that the form of the grant was oral in the first place followed by an order of the Maharaja to the tenants to recognise the grantees.
Now in the finally published Record of Rights the villages mentioned are Upar Barga, Heth Barga, Rau Rau, Raipura and Rabodh. The condition of the grant is stated to be resumable by the Maharaja on the family of Hira Singh and Kuber Singh becoming extinct. The same form of entry appears in regard to the other villages. It is to be noticed that Lallu Tewari is not mentioned. The records were finally published in 1808 but it has been said that prior to that date Lallu Tewari disposed of his interest in some way although there is no evidence in the case on this matter.
There is no doubt that this entry was prepared in the presence of parties and that it would be difficult, therefore, for the plaintiff to contend that the condition of the grant was other than that expressed in the record.
I have already pointed out that the grant was an oral one and, therefore, apart from the effect of the Amalnama of 1908 Sambat, the question of tae terms of the grant would be a question of fast.
It is contended that the decision in this case must largely depend on the terms of the grant itself. There was no evidence in this case apart from that to which I have already referred as to the custom to resume a part of a jagir and to rebut the presumption which arises from the entry in the Record-of-Rights. It seems to me that on those grounds alone the plaintiff''s case must fail. There is no suggestion in that entry that there is a custom to resume a part of the jagir and indeed it is clear from the entry that the jagir is resumable only on the extinction or the failure of male heirs of the persons named therein.
It seems to me, therefore, that on these grounds this appeal must fail, and be dismissed with costs.
Fazl Ali, J.
The only question to be decided in this appeal is whether the plaintiff is entitled to resume an undivided share in a certain jagir. The plaintiff''s case is that the original grantees being three persons, namely, Lalu Tawari, Hira Singh and Kaher Singh, Lallu Tewari''s share in the jagir is resumaola because his male line has now become extinct. The defendant''s reply to this is that everything else being assumed in favour of the plaintiff, the jagir is resumable is a whole and not in parts and that the plaintiff''s right of resumption will accrue only when the male lines of Hira Singh and Kuber Singh also become extinct, on this point the Record-of-Rights undoubtedly supports the defendants'' case and the question is whether the plaintiff has succeeded in showing that it is not correct. I agree with my learned brother that tae plaintiff has failed to do so. As was observed by the Privy Council in AIR 1930 45 (Privy Council) the entries in the Record-of-Rights being made after enquiry by experienced Revenue Officials are statutory evidences of great weight and the onus is on the party impugning their correctness to establish by cogent evidence that such, entries are incorrect. It was open to the appellant in this case to show that by the terms of original grant even a portion of the jagir was resumable on the extinction of the male line of one of the jagirdars, but the amalnama Ex. 5 does not show this. The appellant has also, as the learned Sub Judge rightly finds in his judgment, failed to prove the existence of any custom under which only a share in the jagir originally granted to two or more persons might be resumed by the landlord on the failure of the direct male line of any one of the original grantees.
In fact not a single specific instance has been proved in which only a portion of the jagir was resumed upon the extinction of the male line of one of the grantees. In some cases, again, an entry in the, Record-of-Rights may be proved to be incorrect when the entire materials upon which it was based are before the court and it is clear that these materials do not justify the entry. In the present case, however, we do not know exactly upon what materials the entry was based and all we can say is that usually the Record-of-Rights in based upon a wide range of materials which may include the admissions of the parties. It in clear, therefore, that the plaintiff has adduced no cogent evidence in the case to rebut the Record-of-Rights. It is, however, argued on behalf, of the appellant that the facts which are now admitted in the case are sufficient to show that the Record-of-Rights must have been wrongly prepared. It is contended that Hira Singh and Kuber Singh and Lallu Tiwari, the original grantees, must be presumed to be tenants-in-common and that of the third share each in the property and, therefore, once it is conceded that there is a custom entitling a zamindar to resume a jagir on the failure of the male line of the grantee, it follows as a matter of law that the zamindar would be similarly entitled to resume a portion of a jagir where there are more than one grantees and where the male line of one of the grantees becomes defunct. Now assuming that the three original grantees were tenants-in-common and that the share of Lallu Tiwari was one-third, the question may yet arise (1) as to what was the intention of the grantor at the time of the grant and (2) if the case is to be decided to the basis of the custom pleaded by the plaintiff, whether he has succeeded in establishing a custom so wide that it not only covers a simple case where there being one grantee the jagir is resumable on the extinction of his male line, but also a case where on the extinction of the male line of one of several grantees, the landlord becomes at once entitled to his undivided share in the jagir. I have already said that there is no reliable evidence whatsoever on the record to prove the existence of the latter custom and I do not think that the latter custom is only a corollary of the former, so that if the one is established the other follows.
On the question of intention also learned Advocate for the appellant certain difficulties of which he did appear to be wholly unconscious. It conceded by him in the course of his argument that his case would have been stronger and clearer if there had been three different grants in favour of three different persons, each being in respect of one-third share in the villages which are the subject-matter of this suit. He also conceded that there are certain decided cases relating to mokarrari leases where it has been held that there being a single lessee in favour of more than one person, the landlord''s right of re-entry or resumption does not accrue so long as the male defendants of one of the leepees are alive The case of 82 Ind. Cas. 204 Gopal Ojha and Others Vs. Ramadhar Singh and Others, , may be distinguished on the ground that in that case the decision was based on the assumption that there was a joint tenancy and not a tenancy-in common but it will be useful to quote the following observations of Sir Ashutosh Muckerji in Ram Narayan Singh v. Chota Nagpur Banking Association 36 Ind. Cas. 321 : 43 C. 332 at p. 409:
The objection as to limitation and recognition are equally fallacious. They are based on the assumption that upon the death of one of the two original grantees, the lessor becomes entitled to re-enter as to one-half of the property demised. This argument overlooks the elementary proposition that the lease would not terminate till the death of the survivor of the two lessees. There is a fundamental distinction between the question of the duration of the lease as a whole and the question of the devolution of the interest there under on the death of the first lessee. We are not now concerned with the question, whether upon t lie death of the first lessee, his heirs or his colessees would be entitled to occupy the demised premises. It is sufficient for our present purpose that the landlord was not entitled to re-enter tilt both the lessees were dead. In this view no question of limitation nor recognition arises.
I think, therefore, that the entry in the Record-of-Rights has been neither rebutted by any reliable evidence nor shown to be necessarily inconsistent with any of the facts proved in the case.
What appears to me to add to the difficulties of the appellant as well as to complicate the case is that a portion of the history of the jagir is shrouded in obscurity and even the appellant is net in a position to throw light on certain important matters. We do not know for instance when Lallu Tiwari ceased to have connection with the jagir. Exhibit F is the plaint of a rent suit filed by the plaintiff''s predecessor-in-interest against only Hira Singh and Kuber Singh in 1875 and the appellant is unable to explain why the suit was brought only against two of the original jagirdars in 1880, Lallu Tiwari''s name does not appear in the road-cess return Ex. E, it also appears that between 1878 and 1924 different shares in the jagir were sold by auction and subsequently the defendants purchased different shares by means of sale-deeds. To none of these transactions Lallu Tiwari or any of his descendants was a party. We thus do not know on what terms Hira Singh and Kuber Singh held the jagir after Lallu Tiwari ceased to have any interest nor is it easy to find out which of the defendants possess now how much of the original share of Lallu Tiwari. In these circumstances the Record-of-Rights appears to me to be the only safe guide to determine on the most important incidents relating to the jagir and it cannot be lightly discarded, especially when there is no clear and cogent evidence proving it to have been wrongly prepared.
As his last resort the learned Advocate for the appellant advances the somewhat ingenious argument that all that the entry in the Record-of-Rights means is that the whole jagir is not resumable until after the families of Hira Singh and Kuber Singh have become extinct, but it does not exclude the case now set up on behalf of his client as to the resumability of a part of the jagir. The simple answer to this argument is that if the fact was that a certain share in the jagir was resumable on the extinction of the family of one of the jagirdars the Revenue Officers who were in charge of the preparation of the Record-of-Rights would not have omitted to make such an entry or would have been content with only making an entry which is both incomplete and in a sense inaccurate.
For these reasons I agree with my learned brother that this appeal must be dismissed with costs.