1. It is difficult to understand the facts of the case on the basis of the evidence on the record. There were two brothers Kesho Saran and Ram Baran. It is not necessary to note what Kesho Saran did with his sir land. He is at present in possession of his share. Ram Baran and his sons mortgaged the zamindari property first and then sold the equity of redemption. When the persons who purchased the equity of redemption redeemed the mortgage, the sons of Ram Baran along with Kesho Saran sued the subtenants in possession of the land for ejectment. There is considerable confusion as to whether Kesho Saran has any interest in the land in suit or not nor is it evident whether Ram Baran mortgaged the sir land. There is no enquiry made whether, after the mortgage, ex proprietary rights in half the sir land were extinguished or not. The decisions of both the subordinate Courts are exceedingly summary. The following issues are remitted to the lower appellate Court for decision after receiving further oral and documentary evidence which may be produced by the parties. The record shall not be sent to the Assistant Collector for further enquiry. The issues are:
(1) Did Kesho Saran and Ram Baran hold separate plots of sir land and was every plot of sir land held jointly by them?
(2) When Ram Baran mortgaged his half share in 1906 of the zamindari, was the sir land also mortgaged?
(3) After the mortgage of 1903, who was in possession of Ram Baran's share of the sir land, Ram Baran or the mortgagees?
(4) On the basis of the above findings, was the ex-proprietary right of Ram Baran and of his sons extinguished subsequent to 1906 and prior to the transfer of equity of redemption by the sons of Ram Baran?
(5) On redemption of the mortgage who became entitled to possession of the sir land of Ram Baran the sons of Ram Baran or the purchaser of the equity of redemption who redeemed the mortgage?
(6) Were Gopi Bhaggal and Suddhan subtenants of the mortgagees or of all the plaintiffs or of some of them if so of which of the plaintiffs?
2. Return shall be made within four months from today's date. Ten days shall be granted to file objections.
3. Kesho Saran and Ram Baran were brothers. Kesho Saran mortgaged his property including sir but redeemed it, so he may be taken to be proprietor and sir-holder of the plots in suit. He is one of the plaintiffs. He has been joined by another plaintiff, a son of his brother Ram Baran. Ram Baran mortgaged his zamindari property including sir and subsequently sold the equity of redemption to the defendant among others. The defendant and the persons who purchased along with him redeemed the mortgage. The defendant is in actual possession of the plots in suit. Kesho Saran and Ram Baran's son Ram Nath sued for the ejectment of Gopi on the ground that Gopi was a subtenant. The names of Kesho Saran and Ram Baran fictitiously continued as sir-holders in the village record, though Ram Baran entirely parted with all his interest in zamindari and sir. Ram Nath plaintiff, therefore, has certainly no cause of action.
4. The next question is whether Kesho Saran can be considered as a sir-holder of the entire plots or only half the plots. The learned counsel for the respondent has somewhat puzzled the Court by producing conflicting Revenue Mahesh v. Hori Khan Sel. Dec. No. 9 of 1918. According to one judgment, the learned counsel desires me to hold that the zamindar who doss not sell his sir land retains only his share of the sir property, while according to the other judgment, I am desired to hold that Kesho Saran is sir-holder of the entire land. In the present case, however, distinction may be made from the ruling of the Board of Revenue because Kesho Saran has not been in actual possession and Gopi, the purchaser, is in actual possession. Kesho Saran is not in possession of the sir lost by his brother, I am, therefore, of opinion that Kesho Saran is sir-holder of only half the plots.
5. It was suggested by counsel for the defendant-appellant that a joint decree to the extent of half may be granted to Kesho Saran. That would merely be a paper decree and, unless Kesho Saran gets it framed, he is not likely to get much pleasure out of it. What is really important in cases of this nature is the actual physical cultivating possession of the land. In my opinion Kesho Saran has not lost his right to half the sir land and is entitled to actual physical possession of half of the plots.
6. In the result I modify the decrees of the two subordinate Courts and grant to the plaintiff Kesho Saran alone possession of half of the plots mentioned in the plaint.
7. The plaintiff Kesho Saran shall receive half costs throughout and Gopi Singh shall receive half costs throughout from Ram Nath.