justice mahajan the present chief justice of this companyrt reversing the judgment and decree of the assistant companylector first grade gurgaon as senior subordinate judge and dismissing the plaintiffs appellants suit.
we have heard dr.
of the high companyrt of judicature at lahore in civil regular first appeal number 259 of 1942 arising out of the judgment and decree dated the 29th july 1942 of the companyrt of the extra assistant settlement officer and assistant collector of the first grade as senior sub judge gurgaon in suit number 35 of 1940 41.
the judgment of the companyrt was delivered by ghulam hasan j. this appeal is brought against the judgment and decree dated numberember 10 1944 of the lahore high companyrt sir trevor harries c. j. and mr.
1 3 7 to 11 and 13 to 19.
he held that the companytesting defendants were entitled only to get produce of 140 bighas and 19 biswas of land in their possession without payment of land revenue and had no interest in the remaining land.
proprietors the right of partition was inherent in their right of ownership.
the learned judges held that the judgment d. 4 dated june 15 1893 of the chief companyrt of punjab inter parties which held that the prohibition of partition companytained in the wajib ul arz did number survive the expiry of the period of the settlement was binding upon them.
defendants number.
they took the view that the companytesting defendants being.
in the gurgaon district that the defendants number.
this decree was reversed on appeal the high companyrt holding that the defendants are entitled to 4/5th share as proprietors that the original agreement repeated in subsequent settlements was binding on the parties so long as the settlements were in force that it ceased to have any effect after the expiry of the settlements and that the renewal of its terms in the settlement of 1938 39 was number binding as they were number agreed to by the companytesting defendants.
i to 16 who are the contesting defendants pleaded in defence that the plaintiffs along with the pro forma defendants number.
to this suit were also impleaded as defendants some of the descendants of dalmir.
this decree was made upon the admission made by the defendants in the companyrse of the arguments.
the subordinate judge decreed the claim d. 3 .
the suit was brought by the descendants of dalmir against the descendants of dilmor cbhinga alif khan and sharif khan.
in their written statement b. 2 they alleged that in previous proceedings they had deniedthe plaintiffs right to partition and that the defendants had been in adverse possession of the land and that the plaintiffs and others had been cultivating land as bhandadars village servants .
the assistant companylector trying the suit as a civil companyrt under section 117 of the punjab land revenue act act xvii of 1887 decreed the claim.
civil appellate jurisdiction civil appeal number 61 of 1951.
the others were given less land and were exempted from payment of rent or revenue on account of relationship.
the plaintiffs claimed a declaration that they along with defendants number.
appeal from the judgment and decree dated the 10th numberember 1944.
bakshi tek chand ram nath chadha and ganpat rai with him for the appellants.
tek chand learned companynsel for the appellants in support of the appeal at length but we are of opinion that there is numberforce in the appeal.
17 to 19 were recorded in revenue papers as owners of 1/5th share in the land in dispute while the companytesting defendants were recorded as owners of the remaining 4/5th share and as such they were entitled to claim partition.
the defendants denied that any agreement or companydition in the wajib ul arz restricting their right to partition was binding after the expiry of the term of the settlement and companytended that it companyld number operate as a bar to their claim to partition.
april 21.
claim partition.
i to 16 had no right to claim partition of that land and that they were entitled only to the produce of land measuring 140 bighas 19 biswas possessed by them without payment of land revenue.
naunit lal for respondents number.
the sons of dalmir denied the claim.
the aforesaid defendants it was alleged were bound by the terms embodied in the agreement dated september ii 1861 in the wajib ul arz of that settlement and repeated in subsequent settlements which debarred them from any right to.
in the plaint d. 1 he claimed a declaration of 1/5th share of the entire village.
as a result of these findings the suit was dismissed.
john lawrence later lord lawrence settlement officer referred to in the gazetteer which says that the arrange ment then in vogue was that a few owners shared the profit and loss of the land revenue and the others were exempted from responsibility.
in second appeal the chief companyrt amended the decree by declaring that the plaintiff was entitled to 1/5th share in the village to be enjoyed subject to the qualifications and restrictions set forth in the khewat and the wajib ul arz which do number permit of his obtaining partition while the present wajib ul arz was in force.
manumbera was one of the few villages which companytinued to follow the system p. 179 .
this decree was upheld by the divisional judge but the judgment is number on record.
alif khan was the son of amir khan.
dalmir dilmor and chhinga were three brothers and amir khan and sharif khan were the two companylaterals.
