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1952 DIGILAW 104 (RAJ)

Shri Jai Krit Singh—Chairman and Shri Hetudan Ujjwal v. .

1952-04-24

NARAINSINGH

body1952
H.D. Ujjwal—These two are connected appeals arising out of the same order of the Revenue Secretary, Dholpur, dated June 7, 1946. They remained pending at the time of integration and have been sent to us for disposal. We shall take the defendants appeal No. 63 first. 2. The plaintiffs were the Zamindars of 5 biswas of land in village Bichpuri muafi, Tehsil Rajkhera of which Rao Bhagwan Singh is the muafidar. In the year 1883 A.D., the ancestors of the plaintiffs gave up possession of the land when they were not able to pay its land revenue. The muafidar gave the land to the defendants for cultivation, but in the village Khewat, the plaintiffs continued to be recorded as Zamindars of the land in dispute upto this day as ghair-qabiz and the defendants as qabiz. 3. The plaintiffs filed a suit for recovery of possession in the court of Assistant Revenue Secretary, Dholpur and obtained a preliminary decree for possession with the directions that the parties should settle their accounts within six months 4. The Revenue Secretary upheld the lower courts decision and fixed the amount of Rs. 218/- to be paid by the plaintiffs to the defendants as compensation. 5. The defendants have raised two points before us, (1) that the plaintiffs, who had relinquished the land in 1883 A.D. could not claim it back after such a long time, and (2) that the muafidar has given this land to them in zamindari rights. 6. The learned counsel for the plaintiffs says that his clients never surrendered the zamindari rights and that when they were unable to pay the land revenue, they gave up cultivatory possession and the muafidar made arrangements with the defendants for its cultivation. That the muafidar had no right to confer muafi rights and that under Chapter II of the Dholpur Code, adoptions, wills gifts and sales were not permitted without the sanction of the Darbar. 7. What is the significance of a relinquishment of cultivatory possession by a muafidar tenant. It simply means that the muafidar himself may arrange for the cultivation. It could not mean surrender of the zamindari rights which were not transferable without the Darbars sanction. 8. Sec. 1 of Chapter II of the Dholpur Code which runs as follows is also significant :— "When the present settlement operations began there were several villages in the State held by mustajiris. It could not mean surrender of the zamindari rights which were not transferable without the Darbars sanction. 8. Sec. 1 of Chapter II of the Dholpur Code which runs as follows is also significant :— "When the present settlement operations began there were several villages in the State held by mustajiris. These mustajirs exercised all the rights of zamindars, but permanent zamindari rights had not been conferred on them, and it was understood that, under certain conditions, the original zamindars might be reinstated, or the zamindari rights might be conferred on others." Though this section mentioned zamindars in possession of mustajirs only, but its obvious intention was to reinstate the original zamindars who were not out of possession in similar circumstances. 9. The defendants could not show that the muafidar had powers to confer zamindari rights on them. The present Khewat entries clearly establish that the zamindari rights of the plaintiffs have not extinguished so far. 10. As regards limitation, it is true that a regular suit was filed by plaintiffs sixty years after their dispossession in the year 1883. The very next year (1934) they had applied for the return of their land. But the court directed them to file a regular suit. Later on, in the course of the correction of Khewat in the year 1911 the defendants attested the present Khewat entry acknowledging the plaintiff as zained zamindars of the land in dispute. Had the zamindari rights been conferred on them (defendants), that was the proper time for them to have objected to the Khewat entry in favour of the plaintiffs. The new Khewats were completed in the year 1917 when the plaintiffs were again directed by the attesting officer to file a regular suit for the recovery of their land. 11. In view of the defendants having admitted the plaintiffs as proprietors of the land in dispute during the correction of Khewat and the direction of the attesting officer asking the plaintiffs to file a regular suit for the recovery of possession in the year 1917, the period of limitation has been rightly counted by the lower courts from the year 1917, under sec. 19 of the Limitation Act. The period of limitation is 30 years in such cases under sec. 144 of the Dholpur Limitation Act. 12. 19 of the Limitation Act. The period of limitation is 30 years in such cases under sec. 144 of the Dholpur Limitation Act. 12. We, therefore, agree with the concurrent findings of the two courts below that the suit filed on February 1944 is within time. For reasons given above, the defendants appeal is rejected. 13. The plaintiffs appeal has also no force. The lower appellate courts order granting Rs. 211/- as compensation to the defendants for paying the outstanding dues is based on equity and justice and must be upheld. The plaintiffs appeal is also rejected.