JUDGMENT
1. This is a first appeal brought by a plaintiff whose suit has been dismissed by the learned Subordinate' Judge of Meerut on the finding of a Revenue Court. The plaintiff is the son of the defendant and the plaintiff and the defendant formed a joint Hindu family. The plaintiff has brought a suit for a decree that he should have absolute possession of certain plots in mauza Harora as his sir. The defendant on the other hand contends that these plots are the ex-proprietary tenure of the defendant. The father and the son had this zamindari property, and in 1912 certain trustees were appointed to manage the whole of the joint family estate. The evidence of the patwari shows that the trustees were entered in the papers in addition to the name of the father, and the evidence leaves no doubt that the trustees, one of whom was the father, were managing the whole of the joint family property as trustees for the joint family. In Act 3 of 1926, Section 4, Sub-section (d) it is provided that the land which, at the commencement of this Act, was being cultivated by the landlord with his own stock or by his servants or by hired labour and which was recorded as the khudkasht of the landlord in the agricultural year immediately preceding the agricultural year in which this Act came into force, became sir and it is claimed that the land in suit became sir under this provision. The evidence supports this, as the patwari states that the land had been entered as khudkasht from before 1332 Fasli, which corresponds to 1924-25. The result therefore of the Act was that the land became sir, but as the management was in the hands of the trustees, who are acting on behalf of the joint family, it is clear that legally the land became the sir of the joint family. Dr. Katju has argued at some length that under these circumstances the land would become the sir of the father alone and not of the joint family.
2. We are of opinion that this is an error, because it was the joint family which was the landlord, and the management of the property was also on behalf of the joint family. Clearly therefore the sir was the sir of the joint family. Now in original suit No. 57 of 1930 there was a case between the parties which was settled by a decree of the Subordinate Judge dated 28th April 1931 on a compromise. In this compromise it was provided that the property of the family should be divided equally between the father and the son, and in para. 3, on p. 19, it is provided:
The sir and khudkasht lands situate in lot No. 1 shall be owned by plaintiff 1 and those situate in lot No. 2 shall be owned by defendant 1.
3. In our opinion that is a clear provision that the lands which were sir and khudkasht of the joint family should become the sir and khudkasht of the party who owned a particular lot in which that sir and khudkasht was situate. Now in Section 14, Agra Tenancy Act (Act 3 of 1926) it is provided in Sub-section (1) that ex-proprietary rights do not arise where there is an exchange between co-sharers in the mahal. In our opinion this is a clear case of exchange between the co-sharers in the mahal. The father and the son are constituted co-sharers by this agreement for partition, and by this particular clause they agree to an exchange of the sir and khudkasht. Clearly, therefore, no ex-proprietary rights will arise. The revenue Court was, therefore, incorrect in holding that the father had acquired any ex-proprietary rights in the portion assigned to his son. The mere entry of the name of the father previously was clearly merely as one of the trustees or as representative of the joint Hindu family. Some argument was made by learned Counsel for the respondent that an affidavit of one Sant Singh printed on p. 11 should be treated as evidence. A mere affidavit is not evidence, and the person making the affidavit was not subjected to cross-examination. Moreover the circumstances of this case, which are admitted, show that even if Sant Singh repeated in evidence the allegations which he made, these allegations would have no weight against the admitted facts which have the effect in law which we have set out. We, therefore, allow this first appeal with costs throughout, and we grant the plaintiff a decree in the terms of the plaint relief (a). The case is remanded to the lower Court for ascertainment of the amount of mesne profits or damages to which the plaintiff is entitled and for decision and disposal of issue 2.