1. This appeal arises out of a suit to recover possession of properties purchased by the plaintiff under a deed of sale from an uncle of the defendants.
2. The learned Munsif in the Court of first instance held that the whole transaction was mala fide and was nothing but a hoax which the plaintiff assisted by his irresponsible witnesses intended to bring into existence by taking unfair and undue advantage of Jagatman's extreme old age and shattered state of health. The Munsif, therefore, found that the plaintiff's title deed was not proved and that he was not entitled to recover possession of the properties, and in view of that finding, the Munsif found it unnecessary to decide the other issues. But he expressly stated with regard to the other point, with which we are concerned in this appeal, that he had no hesitation in holding that the said Jagatman was joint in mess and business with defendants till his death.
3. Now, the learned District Judge, on appeal, has considered it sufficient for the purpose of setting aside these very strong findings, based upon a large amount of evidence, to hold that the defendants cannot impugn the validity of the sale deed on any ground unless they show that they were joint with their uncle. Now, to begin with, this is a proposition which is stated far too widely. There is authority for the proposition that a stranger cannot impugn the validity of a title-deed on the ground that no consideration passed. But that a defendant who is sued in ejectment cannot put the plaintiff to the proof of his title is entirely a new proposition, and that is what the finding of the learned District Judge would amount to. Then as to the second point whether they were joint or separate, the learned Judge does not seem to have considered any evidence except a rather ambiguous expression in the descriptive column in the record-of-rights where it is stated that one Jagatman, son of Bacha Raut, and two people, Har Lal and Pithu Raut, sons of Debi Raut, are the tenants bahissa barabar. The learned Judge says he must take this to mean 'in equal shares' and if so it would come under the ruling in Appoviers v. Rama Subha Aiyan 8 W.R. (P.C.) 1 : 11 M.I.A. 15 and be tantamount to a change in the nature of the tenancy which would be a common tenancy We do not think that the words would bear any such construction, even if they appeared in the column set apart for the status and other incidents of tenancy. But appearing as they do merely in the descriptive column, it seems to us obvious that they are merely intended to show that the first name entered is the uncle's and that the following two names entered together are the nephews and that there are only two shares in the jote and not three. It does not seem that it is necessary to put any other construction on the words and it does not seem that the Tenancy Act would authorise a Settlement Officer to make any declaration as to the jointness or separateness of tenants in the column which is set apart for their names. There is, however, other evidence, as it will appear from the Munsif's judgment, because he says, on the strength of the oral and documentary evidence adduced by the defendants, I have no hesitation in holding that the said Jagatman was joint.' The District Judge should have considered that evidence and come to a careful conclusion upon it whether the persons actually were joint or separate. His judgment, as it stands, is of little value and we must accordingly set aside the judgment and decree of the lower appellate Court and direct the District Judge to rehear the appeal and decide on the evidence, firstly, whether the plaintiff's title on his deed of sale is a good title and whether the title-deed was obtained by unfair and undue influence from an old man in a shattered state of health, i.e., whether the transaction was a mala fide or a bona fide one, and in the second place, the learned Judge must consider on the independent testimony in the case whether Jagatman and his nephews were separated within the purview of the Hindu Law. Having settled these two points, the learned Judge will proceed to decide the appeal on his findings.
4. Costs will abide the result.