1. This second appeal arises out of a suit brought by Hansraj, plaintiff-appellant, against his cousins for damages in respect of a certain 5 bighas 1 biswa, 6 biswansis of a tenancy holding which the defendants are said to have cultivated over and above the area in the holding to the possession of which they are entitled. The plaint set forth that one Madho Singh had three sons, and that the plaintiff was the son of Sheo Sahai. The other defendants were sons of Ganga Bakhsh and Har Bakhsh. It went on to say that there was an occupancy holding belonging to all three brothers, that the plaintiff inherited his father's rights as a co-tenant and as such was entitled to be in possession or to enjoy the profits of 18 bighas 7 biswas and 7 biswansis, whereas he had only been allowed to cultivate 13 bighas 6 biswas. He, therefore, asked for a sum of Rs. 355 as remuneration for three years in respect of the land in the possession of the defendants. The suit was resisted on the ground that Madho Singh had five sons, not only three, and that the occupancy tenancy was acquired by all the five brothers. Of these five brothers Sheo Sahai was separate, but the other four brothers formed two and not four units inasmuch as the second brother was joint with the fourth and the third with the fifth. Hence when Sheo Sahai died the plaintiff got a one-third share, but he got nothing else when two of the three brothers died without issue, these two brothers' share going to the two brothers with whom they were respectively united.
2. The trial Court accepted the plaintiff's contention and decreed damages but not to the amount claimed. In appeal to the Subordinate Judge the latter came to a finding that there were five brothers, and on this finding held that the plaintiff was only entitled to a one-fifth share of the tenancy. He relied on the oral evidence of the defendants, supported as it was to some extent by a khatauni, to which he referred although the document was not produced as evidence in the trial Court.
3. In this second appeal the first point taken is that the lower appellate Court was not entitled to take the khatauni of 1859 as evidence without recording reasons thereof. This objection, in my opinion, fails. It was not a case of the Court accepting evidence filed in the appellate Court by the defendants, but it appears that the trial Court itself chose to refer to the khatauni. Any way the question whether the Court was justified in using the khatauni has no importance in view of my findings below.
4. A second plea is that even if the khatauni be accepted, the plaintiff's share must be deemed to have been 1/4th and not 1/5th. The argument on which this contention is based is that the khatauni of 1859, which showed the existence of a 4th brother Surja, shows that all the four brothers entered then were entered as non-occupancy tenants. Even then if Surja survived until the non-occupancy tenancy matured by lapse of time into an occupancy tenancy the khatauni only is evidence of four co-tenants. The reply of the respondents to this argument is that the whole case of the plaintiff was based on the allegation of there being only three brothers, and once this contention was disproved, as it was by the khatauni, his whole case must fail.
5. I do not find that the plaintiff's case as set forth in the plaint rested on there being only three sons of Madho, but it did rest on the allegation that only three sons had acquired occupancy rights and that was all that was necessary for the purpose of the plaint. The khatauni does not prove that the four brothers entered therein became occupancy tenants.
6. At the same time this Court is entitled to uphold the general finding of the lower appellate Court on different grounds, provided that it confines itself to the evidence on the record. There appears to be no reliable evidence to justify it being held that the plaintiff had a one-third share. There can be no doubt that there were more than three brothers. Whether any one brother was united with any-other brother in such a way that on the death of one of them his share went to the children of his united brother and not to any other brother or the children of any other brother is not proved. Nor is there any prima facie presumption in the matter. This being so, the plaintiff was bound to show that his area was defective. The lower appellate Court has dismissed the suit on a finding that the plaintiff was only entitled to a one-fifth share. I hold that the suit should have been dismissed on the finding that the plaintiff had not made out his case for being entitled to a larger share. Even if we infer from the khatauni that there ware four brothers, and four brothers only, who acquired the occupancy right, the plaintiff's share would be very slightly bigger than that which he holds at present, Where there is a certain area held in co-tenancy and the area enjoyed by one co-tenant roughly corresponds to the area to which he would be entitled by a strict division of the total area according to shares, I hold that he is not entitled to ask for damages because the area possessed by him is slightly smaller than that which mathematical division would give him. It may well be that the circumstances of the holding did not allow a strict apportionment. I dismiss this appeal with costs.