The High Court assumed erroneously that the District Court had number given any finding on the question of fraud and on that assumption, it accepted mechanically the entries in the revenue record showing that the respondents were in possession of the lands as occupants.
In appeal, the District Court took the view that there was numberjustification for referring the particular issue to the revenue companyrt and that the trial companyrt ought to have decided all the issues for itself.
Accordingly, the respondents were put back in possession in July, 1954.
A 5 to A 12.
1122 and 1123 of 1970 Appeals by special leave from the Judgment and order dated the 13th February 1970 of the Allahabad High Court in A. Nos.
17 of 1954 and the one against Sanaullah being No.
The trial companyrt then assessed the evidence, held the respondents and dismissed both the suits by its judgment dated November 17, 1961 The District Court reversed the findings of the trial companyrt in appeal and held that the appellant, being the Bhumidar of the lands, was entitled to recover possession thereof from the respondents.
The names of the respondents were entered as occupants in the revenue record of 1356 Fasli but after companysidering the entire evidence, the District Court rejected those entries on the ground that they were fraudulent.
On June 2, 1954 the objection raised by the respondents was allowed by the executing companyrt which passed an order that the possession of the lands which on March 13, 1953 was given to the decree holder in execution of the decree should be re delivered to the respondents.
The lessor having died during the pendency of those suits, the appellant was substituted in his placed as the Mahant of the Math.
This issue was referred to the revenue companyrt for decision.
The lessor then instituted two separate suits under order XXI, Rule 103 of the Civil Procedure Code, the suit filed against Fakhrul Hasan being No.
2 being whether the respondents were Sirdars of the lands as alleged in paragraphs 17 and 18 of their written statements.
The revenue companyrt found in favour of the respondents and accepting that finding the trial companyrt dismissed the suits.
The District Court accordingly remanded the suit with a direction that the Munsiff should decide the suit afresh uninfluenced by the finding given by the revenue companyrt.
267 and 268 of 1962 against the decrees passed by the District Court.
C. Manchanda, S. K. Bagga, Mrs. Sureshta Bagga and Mrs Yash Bagga for the Appellant.
As pointed out by the learned Judge, the original lessee Sukai had migrated to Bombay after handing over the charge of the lands to his nephews who got the names of the respondents entered in the revenue record surreptitiously.
The learned Munsiff who tried the suits framed six issues, issue No.
The learned District Judge, by his judgment dated April 18, 1962 had gone in great details into the question whether the particular entries showing that the respondents were occupants of the land were genuine or fraudulent.
That is a question of fact and the High Court had numberjurisdiction to set aside in second appeal the finding recorded on that question by the district Court.
Those entries are Exs.
N. Sharma and C. P. Lal for Respondent.
The decision of these appeals involves a very narrow question as regards the power of the High Court in second appeal.
The respondents filed Second Appeals Nos.
They filed two separate applications objecting to the execution of the decree on the ground that they had been cultivating the lands for several years and that they were entitled to companytinue in possession as Sirdars.
ClVlL APPELLATE JURISDICTION Civil Appeal Nos.
The Judgement of the Court was delivered by CHANDRACHUD, J. These appeals by special leave arise out of the judgment rendered by the High Court of Allahabad on February 13, 1970 in Second Appeals 267 and 268 of 1962.
In spite of this term against sub letting, on July 27, 1942 the Lessee executed a power of attorney in favour of his nephews Haqiqullah and Ghani, apparently authorising them to cultivate the lands on his be half.
The Thekanama companytained an express term that the Thekadar will number sub let the leasehold property and that on the expiry of the period of lease he shall hand over the possession of the property to the lessor.
Thus, the only question before the High Court was whether the entries on which the respondents relied were genuine or fraudulent.
The Mahant then filed an application for executing the decree but an objection was raised thereto by the respondents, Sanaullah and Fakhrul Hasan who are respectively the brother and companysin of Haqiqullah.
The appeals were accordingly allowed by the District Court by its judgment dated April 18, 1962.
The High Court having allowed those appeals the Mahant of the Math has filed these appeals by special leave.
The lease was to enure for a period of 10 years and was due to expire on June 30, 1952.
The Thekanama was executed on June 5, 1942 to be effective from July 1, 1942.
Mahant Vishwa Nath Bharthi, the sarbrahkar of the temple of Shankarji Maharaj, Khowja, gave lands belonging to the temple, ad measuring about 44 acres, on Theka to one Sukai.
On the expiry of the period of lease the Mahant instituted a suit for ejectment of the lessee which was decreed on November 25, 1 952.
267 and 268 of 1962.
