1. This is a plaintiff's appeal and the facts out of which it has arisen are as follows:
2. One Din Dayal was the owner of 47 bighas 9 biswas muafi sarkari in the village in question. This revenue-free holding was resumed by Government and it became what is called muafi zabti sarkari. On the 31st of March 1887, Din Dayal sold half to Sheo Harak. Sheo Harak sold this to Jagdeo. The other half passed to the heir of Din Dayal, namely, the defendant-respondent Ram Charittar. He sold one half of this half to the plaintiff on the 29th of September 1907, and he mortgaged the other half to the plaintiff. It is admitted before as that Din Dayal claimed a proprietary interest in the land. The plaintiff brought a suit upon his mortgage and obtained a decree for sale. He applied in execution for sale of the property. Ram Charittar pleaded that the property was ancestral and that it ought to be sold through the Collector. His plea was successful and the decree was transferred for execution to the Collector; the property was sold and purchased by the plaintiff and the decree entered as satisfied. The plaintiff then applied for and obtained formal delivery of possession. Then the plaintiff's difficulty arose. The proprietary interest which was mortgaged and sold was not recorded in the khewat but in the khatauni jamabandi. Ram Charittar was recorded as in possession of the land in the capacity of a tenant, the entry being in the words 'sir khud.' The plaintiff applied to the Revenue Court for the removal of Ram Charittar's name and the entry of his name in place thereof in the jamabandi. Ram Charittar pleaded in defence that the land was his sir land, that he had acquired an ex-proprietary right as tenant therein, and that his name should remain recorded. The Revenue Court came to the conclusion that the original interest of Ram Charittar in the land was that of a tenant with occupancy rights. It accordingly rejected the plaintiff's application, whereupon the plaintiff brought the present suit in which he asks for a decree for maintenance of possession or in the alternative, for possession if he be found not to be in possession. The Court of first instance gave the plaintiff a decree for possession as an auction-purchaser of resumed muafi land as entered in the relief and declared that the decision of the Revenue Court was invalid and not binding upon the plaintiff. In paragraph 1 of the plaint the plaintiff stated as follows: 'The defendant is a hereditary muafidar of the resumed muafi land situated in Mauza Banjri, Perganah Bhadaon, granted by the Government. He has been, as such, in possession of the same.'
3. This was clearly an allegation of proprietary interest.
4. In paragraph 1 of the written statement the defendant replied as follows:
The particulars set forth in paragraph 1 of the plaint are admitted.
5. In paragraph 5 of the written statement, however, the defendant pleaded that his original interest in the land was that of an occupancy tenant, that that interest was not transferable, hence the plaintiff by the sale acquired no title whatsoever. His claim for possession of the land was improper and should be dismissed. In paragraph 6, however, he pleaded in the alternative that if according to the plaintiff's allegation (which he had made in paragraph 1 of his written statement already admitted to be correct) the land claimed was muafi, then it was his (the defendant's) sir land and he by reason of a subsequent sale had acquired the interest of an ex-proprietary tenant therein and that, therefore, he was not liable to ejectment in the suit as brought by the plaintiff.
6. The Court of first instance held that the defendant had a proprietary interest in the land and that the decision of the Revenue Court in mutation proceedings was wrong and it gave the plaintiff a decree, as we have stated above, for proprietary possession as auction-purchaser.
7. The defendant appealed. He again pleaded in the alternative: (1) that his right was not saleable under the law, and secondly, that if he had a saleable right then he was an ex-proprietary tenant and as such not liable to ejectment from the land by this suit. His appeal was allowed. The plaintiff appeals. The first plea taken, and it has considerable force, is, that it is not now open to the defendant to raise the plea that his original interest in this land was not saleable according to law; that this was a plea which, if he wished to raise, he ought to have raised in the course of the previous civil suit on the basis of the mortgage; that he at no time raised it, not even in execution proceedings, and that it is no longer open to him to raise it. We think that this is correct. Mr. Janaki Prasad on behalf of the defendant-respondent also states that the position which he takes up on behalf of his client is that his client's interest in this land was a proprietary interest; that it was his client's sir land and that he now holds the land with the right of an ex-proprietary tenant and as such is liable to pay rent but not to ejectment in the present suit. The Court below has come to a finding that the defendant was originally an occupancy tenant of this land, that he had no transferable right and that the plaintiff acquired no title by the decree and the sale thereunder. It has given no reason whatsoever for its decision. In view of the plea taken up before us that it is no longer open to the defendant to raise this plea (and this we think is a good plea) and also in view of the position taken up by the defendant-respondent's Counsel in the case, the decision in this suit must go upon the assumption that the defendant's original interest in the land was a proprietary interest which was mortgaged, sold in execution of the decree and purchased by the plaintiff. Therefore, it simply remains to be seen whether the defendant's claim to be an ex-proprietary tenant is a good one. That will depend upon the question as to whether the land in suit was the defendant's sir land at the time that the sale took place. We, therefore, remit to the Court below the following issue:
8. Assuming that the defendant's original right was a proprietary interest at the date of the sale and purchase by the plaintiff, was this land the defendant's sir within the meaning of the law?
9. The parties will be allowed to give fresh evidence on this issue. We allow ten days on receipt of the findings for filing objections.