Mohit Gope vs Musammat Mundri

Chapman, J.—The plaintiff''s case was that the defendant Mohit Gope had a holding which he sold to one Mauji Saha in 1898 and that the defendant remained in possession as bataidar under the purchase of Mauji Sahu. That Mauji Sahu was succeeded on his death by his brother Nathu Sahu, and that Nathu Sahu sold the holding to the plaintiff''s father. In the meantime the original tenant-defendant Mohit Gope remained in possession as a bataidar. The suit was for ejectment, or if the Court found that the plaintiff was not entitled to ejectment, then for rant calculated upon the batai system. The Munsif refused to eject and granted a decree for produce rent.

In appeal the judgment was affirmed by the Subordinate Judge. The first ground taken in appeal before us is that the suit should have been dismissed upon the ground of limitation. The contention is that inasmuch as mention is made in the plaint of an entry in the survey record of the year 1903, and as the plaintiff asked the Court to hold that that entry was incorrect the suit should have been instituted within six years which is the period of limitation fixed for a suit for a correction of the Record of Rights and should on that ground have been held to be barred by limitation. The suit, however, was not a suit for a correction of the Record of Rights but a suit for ejectment or for rent in the alternative. The fact that the entry in the Record of Rights was mentioned in the plaint and alleged to be incorrect would not make the suit a suit for correction of the Record of Rights. It is then contended that there is no proper decision of the question whether the defendant conveyed this holding to Mauji Sabu, The original conveyance was not produced, a certified copy was produced, and the defendant admitted the execution of the deed. The only question which the Court had to decide was whether it was a genuine conveyance or not. There is an express finding that it was a genuine conveyance, This finding is partly based on the fact of registration and partly on the fact that Mauji the brother of Nathu was able to produce a series of rent receipts showing that be had paid rent to the landlord for this holding indicating that possession had passed. We are of opinion that the decision upon that point was quite sufficient. It is lastly contended that the rate at which the rent was decreed was not based upon any evidence. The first Court appears to have arrived at the rate of 8 maunds a bigha upon more or less an estimate of its own. Nothing was said upon this point in the Court of first appeal, and the learned Vakil who appears for the appellant is unable to say to us that the point was taken in the first Court of Appeal. He is prepared to search in the record in order to see whether this point was mentioned in the memorandum of appeal to the Subordinate Judge. We think it unnecessary to trouble him to do that, because if it is not shown to have been argued or contended for before the Subordinate Judge we do not think that the fact that it is mentioned in the memorandum of appeal to that Court would justify us in interfering.

The appeal is dismissed with costs.

Atkinson, J.

Agree.