1. The suit which has given rise to this appeal was brought by the appellants for possession of certain zamindari property situated in different khewats, mahals and pattis of four villages. The Court below has dismissed the suit. The material facts, about which there is no serious controversy, are these. One Natha Earn had two sons, Dharajit and Churaman. Dharajit's son is the defendant-respondent, Gobind Singh. Churaman had a son, Earn Prasad, and three daughters, Jiva Kunwar, Karai Kunwar and Chunni Kunwar. The property in dispute belonged to Earn Prasad. The two plaintiffs-appellants are the sons of his sister Jiva Kunwar. The son of another sister of his, namely Karai Kunwar, is Tikam Singh. Chunni Kunwar has left no children. Earn Prasad died in June 1894 without any male issue, leaving two widows Mt. Parbati and Mt. Inchha Kunwar, surviving. It is common ground that the property in dispute was entered in the name of Earn Prasad as long as he was alive and that on his death it was entered in the name of his widows, Mt. Parbati and Mt. Inchha Kunwar, and that the widows entered into possession. Mt. Parbati died first and on her death Mt. Inchha Kunwar alone remained in possession of the property. She died on 27th June 1932. The three sisters of Ram Prasad had predeceased Mt. Inchha Kunwar. On Inchha Kunwar's death the patwari made a report to the revenue authorities that the name of Gobind Singh should be entered over the zamindari properties of which Mt. Inchha Kunwar had been in possession by succession to her husband, Earn Prasad. Objections were filed to this report by three sets of persons. One objection was by the sister's sons of Ram Prasad, namely the present plaintiffs-appellants, Tulshi Ram and Murli Singh, and Tikam Singh. Another objection was filed by one Nand Ram and a third objection was by a man called Behari Singh. Nand Ram and Behari Singh were relatives of the family. We are however not concerned with the objections of Nand Ram and Behari Singh in this appeal. Their objections were dismissed and no further question arises about them.
2. After the report made by the patwari, Gobind Singh also applied for mutation of his name. Gobind Singh, judging from his deposition in the present suit, seems to have claimed mutation on the basis that he had been in possession along with the widows of Earn Prasad, Mt. Parbati and Mt. Inchha Kunwar. The objections of Tul. shi Earn, Murli Singh and Tikam Singh were to the effect that they, being the sons of the sisters of Earn Prasad, were heirs and Gobind Singh had no right to have his name entered. By an application dated 15th August 1932 the parties to this mutation case referred the dispute that had arisen among them to the arbitration of three persons. On 4th September 1932 a joint application was filed before the arbitrators by Tulshi Ram, Murli Singh, Tikam Singh and Gobind Singh stating that they had come to a settlement among themselves and that the names of Tulshi ram and Murli Singh be entered against one-third of the property left by Earn Prasad, that the name of Tikam Singh be entered against another one-third, and that the name of Gobind Singh be entered against the remaining one-third. The same day the arbitrators delivered an award dismissing the objections of Behari Singh and Nand Earn and deciding the dispute that existed between Tulshi Ram, Murli Singh and Tikam Singh, on the one hand, and Gobind Singh, on the other, in terms of the application which had been filed by these persons before them, i.e. they directed that the names of Tulshi Ram and Murli Singh be entered against one-third of the property, the name of Tikam Singh be entered against another one-third, and the name of Gobind Singh be entered against the remaining one-third. The mutation Court, by an order dated 16th September 1932, accepted this award, rejecting such objections to it as had been filed, and directed that the name of Tulshi Ram, Murli Singh, Tikam Singh and Gobind Singh be entered as mentioned in the award. Mutation was effected accordingly and the parties entered into possession over their respective one-third shares.
3. The present suit was raised by Tulshi Ram and Murli Singh in 1936 against Gobind Singh. The substance of their allegations in the plaint is that Earn Prasad was a separated Hindu and was the last male holder of the property, that under the Hindu law, as amended by Act 2 of 1929, they, along with Tikam Singh, being the sons of the deceased sisters of Earn Prasad, were entitled to succeed to the whole property of Earn Prasad and that Gobind Singh had no right or title to any share in that property. They pleaded that the settlement in the mutation case could not affect their title and that 'the decision of the Be-venue Court in the mutation case and the-settlement aforesaid are totally null and void and ineffectual and are not at all binding on the plaintiffs.' They stated that each of the three nephews of Earn Prasad' was entitled to a one-third share, that is Tulshi ram to one-third, Murli Singh to one-third and Tikam Singh to one-third. They alleged that Tikam Singh being in possession of a one-third share in the property, they were entitled to the remaining, two-thirds. As they were in possession of only one-third they brought the suit for possession of the remaining one-third, which, they stated was in possession of the defendant Gobind Singh. There was also a prayer for the recovery of a sum of money as mesne-profits. The main contentions of the defendant, Gobind Singh, in his written statement were that the plaintiffs and the defendant had ' made a settlement by way of a family arrangement and had it verified' before the arbitrators' and that mutation of names having been made in accordance with that family arrangement, the plaintiffs were not entitled to sue. It was pleaded that Section 53-A, T.P. Act, barred the suit. There was also a plea to the effect that the suit was barred by the provisions of Section 233(k), U.P. Land Revenue Act.
4. The Court below has held that the suit was barred by the provisions of Section 53-A, T.P. Act, and that a portion of the claim,, namely that relating to the property situated in mahal Ram Prasad of Mauza Himmatpur, was also barred by the provisions of Section 233(k), U.P. Land Revenue Act. In the result it has dismissed the suit. The-first point raised by the learned Counsel appearing for the plaintiffs-appellants is that the family arrangement relied on by the defendant-respondent having been reduced to writing in the form of the application, Ex. H, filed before the arbitrators on 4th September 1932, it was compulsorily registrable, and that it not having been registered, the Court could take no notice of the family arrangement relied upon. This point was raised in the Court below also. The Court however rejected it on the ground that, in view of the provisions of Section 53-A, T.P. Act, the family arrangement relied upon by the defendant did not require registration. In our opinion the decision of the Court below is erroneous. Two recent Full Bench decisions of this Court read together fully cover the point. One is Ram Gopal v. Tulshi Ram : AIR1928All641 and the other is Mahadei Kunwar v. Padarath Chaube : AIR1937All578 . Ram Gopal v. Tulshi Ram : AIR1928All641 was decided by this Court in 1928, i.e. before the Transfer of Property Act had been amended. It was held in that case, in circumstances similar to those existing in the case before us, that a family arrangement of this nature when reduced to writing required registration. Mahadei Kunwar v. Padarath Chaube : AIR1937All578 was decided in 1937 and the point was raised that in view of the provisions of Section 53-A, which had been inserted into the Transfer of Property Act by the Amending Act of 1929, such a family arrangement did not require registration. The Full Bench did not accept this contention. It was pointed out that in such a family arrangement there was neither a contract to transfer immovable property, nor was there any instrument of transfer. The only difference between Mahadei Kunwar v. Padarath Chaube : AIR1937All578 and the case before us is that in that case the petition of compromise had been filed in the mutation Court itself, whereas in the case before us the petition had been filed before the arbitrators. This circumstance, in our judgment, is of no importance.
5. It has been urged by the learned Counsel for the defendant-respondent that there had been an oral settlement between the parties and the petition filed on 4th September 1932, Ex. H, before the arbitrators was merely intended to give 'information' to the arbitrators of the settlement, so far as it related to the village property. No such allegation was made by the defendant either in his written statement or in his deposition in the witness-box. On the contrary, according to the defendant's own allegations, made in para. 13 of his written statement, there was only one settlement by way of family arrangement and it was the one which was 'verified before the arbitrators.' This argument was not advanced in the Court below at all. We have no hesitation in holding that there is no foundation for this argument. Learned Counsel for the defendant-respondent has next referred to Sections 203 and 208, U.P. Land Revenue Act, and has argued that the present suit comes within the prohibition contained in Para. 2 of Section 207. We are of opinion that this argument also is with, out force. Section 40(1), Land Revenue Act, lays down that all disputes regarding entries in the annual registers are to be decided on the basis of possession. Sub-section (2) provides that if the Collector is unable to satisfy himself as to which party is in possession, he shall ascertain by summary inquiry who is the person best entitled to the property, and shall put such person in possession. The stage of any such inquiry was never reached in this case and the mutation Court had no occasion to inquire into title of any of the parties. Sub-section (3) runs thus:
No order as to possession passed under this Section shall debar any person from establishing his right to the property in any Civil or Revenue Court having jurisdiction.
6. It is manifest that any order passed by the mutation Court deals only with possession and such an order cannot preclude any of the parties to the proceedings from instituting a suit in the Civil Court. The fact that the order of the mutation Court directing the names to be entered in a particular manner is based on a compromise or an award cannot alter the real nature of the order. It is conceded that if there had been no arbitration and the order for the entry of names bad not been made in accordance with the award of the arbitrators, a suit in the Civil Court would have lain. It is argued however that the fact that the mutation case was referred to arbitration and the arbitrators delivered an award, which was made the basis of its order by the mutation Court, alters the position. In our judgment this argument is not correct. If any authority were needed for this view, we would refer to a decision of a bench of this Court in First Appeal No. 183 of 1918 decided on 5th January 1921. The identical point was raised and this is what the learned Judges observed:
Reliance is placed on Section 207, Clause (2), Land Revenue Act, which provides that no person shall institute any suit in the Civil Court for the purpose of setting it aside or against the arbitrators on account of their award. The proceedings in the Revenue Court related, as we have already stated, to the entries of names in place of the deceased Jiraj. According to the express provisions of Section 40, land Revenue Act, the question of title regarding the property in dispute could be contested by a unit in a Civil Court, notwithstanding the fact that the Revenue Court had ordered the entry of the name of particular person in regard to that property. The result of an award under Section 207, in wise like this, would be that if the Court accepted it, it would pass an order in accordance with it, to that the effect of the award could not be in any case higher than that of the order passed in accordance therewith confirming the award. We are therefore of opinion that Section 207, Land Revenue Act, could not prevent a suit like the present, which was for possession of the property, being instituted in the Civil Court. We agree with the view taken by Walsh J. in Gridhari Chaube v. Ram Baran Misir (1916) 3 A.I.R. All. 358 and hold that a suit like the present one is not outside the jurisdiction of the Civil Court.
7. It may be pointed out that the pronoun 'it' in Para. 2 of Section 207 refers to the 'decision' spoken of in Para. 1 of the Section, which refers to the provision in the preceding Section, 'he shall decide in accordance with the award.' There is no prohibition in the Section against the in institution of a suit for possession based on 'title. The Court below has made several mistakes in its judgment when dealing with this question. It has remarked that in view of the provisions of Sections 33 and 34, Land Revenue Act, a mutation Court does deal with questions of proprietary rights. We win only say that the Court below has misread these Sections of the Land Revenue Act and has not properly understood the meaning of their provisions. These Sections merely provide for the maintenance of the annual registers, for the recording of nil changes that may take place and for a report being made by every person obtaining possession by succession or transfer of any proprietary or other right in a mahal or part of a mahal. 'We have already referred to the provisions of Section 40. Then, the Court below has remarked that the Revenue Court could have directed one of the parties to mutation proceedings to the Civil Court for a declaration of title. This remark, again, is baaed on an entire misapprehension of the provisions of the Land Revenue Act. Lower down in its judgment the Court expresses the view that as the result of this petition, embodying the settlement between the parties, which was filed before the arbitrators, 'property was transferred to the defendant.' This again is clearly erroneous. It has been pointed out by their Lordships of the Privy Council as well as by this Court that proceedings for mutation of names are not judicial proceedings. It is also clear that the whole dispute in a mutation case relates to possession. Any settlement arrived at between the parties in such a proceeding with regard to the manner in which the entries should be made can only be a settlement with regard to possession. We hold that the family arrangement relied upon by the defendant required registration, and as it has not been registered, it is not admissible in evidence. The plea of the defendant that the claim of the plaintiffs is barred because of the existence of a valid family arrangement therefore fails.
8. It seems to us however that the decision of the Court below to the effect that the claim for possession of the property situated in Mahal Ram Prasad of Mauza Himmatpur is barred by Section 233(k), Land Revenue Act, is correct. That there was a partition of that mahal subsequent to the mutation order passed on 16th September 1932 is admitted, Ex. K is a copy of an application filed by the appellants, Tulshi Ram and Murli Singh, in that partition case on 11th August 1933. They state in that application that they have no objection to a partition being made and pray that a separate patti in respect of their own share be formed. In the witness-box Tulshi Ram makes these statements:
There was a partition in Himmatpur village. Govind Singh and I were parties. My brother Murli Singh and Tikam Singh were also parties. The disputed property of Himmatpur was included in the said batwara (partition).
9. Application dated 11th August 1933 was read over to him and he admitted it to be the application made by him in the partition proceedings. He then proceeds:
Partition has taken place and we are all in possession of properties according to decision in the partition case. Govind Singh is the lambardar.
10. Thus, there is no doubt that a partition was carried out and that separate pattis were formed in respect of the shares of the appellants and Govind Singh. It seems to us that, in view of the provisions of Section 233(k), Land Revenue Act, the claim with regard to the property in this village and mahal of which Govind Singh is in possession does not lie. The opportunity which the, appellants had of raising the question of their proprietary title was in the course of the partition proceedings in accordance with the provisions of Section 111 of the Act. They did not raise the question then. It seems to us that if their present claim is entertained, it would affect the partition of the mahal. We may refer to the leading ease in Mahammad Sadiq v. Laute Ram (1901) 23 All. 291. There have been many other cases, since that Full Bench decision, which are not all easily reconcilable, but the recent pronouncement of their Lordships of the Privy Council in Bajrang Bahadur Singh v. beni Madho Baksh Singh sets the controversy at rest. We hold therefore that the plaintiffs' suit was rightly dismissed in respect of the property situated in mahal Ram Prasad of mauza Himmatpur which forms part of item 4 of the list given at the foot of the plaint. The claim in respect of the property situated in mahal Incha Kuer of village Himmatpur is not barred. For the reasons given above, we allow this appeal in part, set aside the decree of the Court below so far as it dismisses the suit of the plaintiffs for possession of the property in suit, other than that situated in mahal Bam Prasad of village Himmatpur, and pass a decree in favour of the plaintiffs for possession over all the properties claimed except the property situated in mahal Ram Prasad of village Himmatpur.
11. It is argued on behalf of the defendant-respondent that the plaintiffs are not entitled to any mesne profits as the defendant had entered into possession with the leave und licence of the plaintiffs. Reference is made to the definition of 'mesne profits' in Section 2(12), Civil P.C., and it is argued that the word 'wrongful' implies that possession should have been taken by improper means. In our opinion, this argument is without force. There is no question of any leave or licence. The plaintiffs claimed a decree for possession over certain property to which, they alleged, they were entitled by inheritance. The defendant pleaded a settlement or family arrangement in bar of the plaintiffs' claim. The document on which the defendant relies in proof of this settlement or family arrangement has been held to be inadmissible in evidence. The result is that in law there is no family arrangement which can bar the suit. In these circumstances the possession of the defendant must be held to be wrongful in the eye of the law. It is not necessary that possession in order to be wrongful must have been obtained in consequence of some improper act as urged by the learned counsel. We hold therefore that the plaintiffs are entitled to mesne profits of the property in respect of which we have granted them a decree for possession. They will get mesne profits for the three years preceding the institution of the suit as well as pendente lite and future mesne profits up to the date of delivery of possession. The plaintiffs will also get interest on the amount of mesne profits at the Court rate. The case is remitted to the Court below for the ascertainment of the amount of mesne profits and for the passing of a final decree for the recovery of the amount so ascertained in accordance with the observations made above. The parties shall receive and pay costs in both Courts in proportion to their success and failure.