1. This is a plaintiffs' appeal against an appellate decree and order of the District Judge of Allahabad, dismissing the plaintiffs' suit which was for a declaration of their ownership to certain property in what is called the village of Qoraishpur, which is within the Municipality of Allahabad. The plaintiffs claimed an area of 5 biswas 14 dhurs and their case was that they had received 2/3rds of it as a gift from Kamta Prasad, one of the zamindars of the village, and that they had purchased 1/3rd from the sons of Gharu Babu, another zamindar. The Court which first tried the case held that the gift alleged to have been made by Kamta Prasad had not been proved, but gave the plaintiffs a decree in regard to the 1/3rd said to have been the property of Charu Babu. The main contesting defendant had purchased the whole of the property from Kamta Prasad, and he contested the suit on the ground that the plaintiffs had no title. On appeal to the District Judge it was held that the plot concerned was no part of the main zamindari Khata but was a separate miscellaneous plot No. 6, and as the trial Court had proceeded on a misconception, an issue was referred to the trial Court in order that the share, if any, of Charu Babu in the plot in suit without reference to the extent of his share in the main zamindari Khata might be ascertained. The trial Court, a different Munsif from the one who had first tried the the suit, returned a finding that Charu Babu had no share in the plot at all, and this finding has now been confirmed on appeal by the District Judge.
2. The argument in second appeal is that as Gharu Babu and Kamta Prasad were both recorded as co-sharers in the main khewat, it follows that they must have been co-sharers in this particular plot, Khata No. 6, which is abadi. I have not been referred to any authority for holding that this is a necessary presumption, but no doubt in an agricultural village it is almost, if not quite, invariably found that all the co-sharers in a village have a share in the abadi plot or plots. The respondents rely on certain admissions which were made by the parties and which have been recorded by the Courts to show that in the case of this village no such presumption can possibly be made. In his order of remand dated 27-8-30 the District Judge remarked:
It is admitted now that the plot does not form part of the main zamindari khata No. 1, but is No. 6, one of the many miscellaneous plots which make up khata No. 21, the ownership of which plots does not necessarily follow the title to the main zamindari khata;
and in fact it was for this reason that the issue had to be referred to the trial Court in order to discover whether Charu Babu really was a co-sharer in khata No. 6. The Munsif recorded a finding after an examination of the evidence to the effect that the plaintiffs had not proved Charu Babu's ownership, and when the matter came up in appeal the learned Judge again recorded the admission of the parties, viz. that the other miscellaneous plots the shares are not in the same proportion in which shares are owned in the zamindari, and that it is also not necessary that the co-sharers in the zamindari may also have any shares at all in the miscellaneous plots. Now the plot in suit, khata No. 6, is a miscellaneous plot, but it has been argued that because it is not only a miscellaneous plot but an abadi plot the presumption must still be made that the co-sharers in the village have or had a share in it. It has further been pointed out that no owners at all are recorded against Khata No. 6.
3. In my opinion unless it can be held that the presumption is a necessary legal presumption the suit must be decided by the findings of fact. I have not been shown any authority for holding that there is a necessary legal presumption that at any moment the co-sharers in a village which has been included within Municipal limits are necessarily co-sharers in the abadi plot or plots merely for the reason that they are recorded as co-sharers in the village. The Courts have not made the presumption and they have not found that Charu Babu's title is proved from the evidence which was before them. It follows therefore that the present appeal fails and is dismissed with costs.