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Mt. Aisha Bibi Vs. Divandar Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Reported inAIR1937All350
AppellantMt. Aisha Bibi
RespondentDivandar Prasad and ors.
Excerpt:
.....regards the merits of the case, it is perfectly clear that the assistant collector, acted illegally in passing his order of ejectment before the expiry of the time given for payment......of any suit or application which has been decided by any subordinate revenue court in which an appeal lies to the district judge, and in which no appeal lies to the high court. the grounds of revision are the same as are mentioned in section 115, civil p.c. it is admitted that no appeal lies to the high court. the only question is whether an appeal lay to the district judge from the order of the assistant collector directing the ejectment of the applicant under section 80, tenancy act. section 248, tenancy act, provides for appeals from certain orders, including those mentioned in section 47, civil p.c. if the proceedings for ejectment under sections 79 and 80, agra tenancy act, relate to the execution, discharge or satisfaction of the decree, there can be no doubt that the order of.....
Judgment:
ORDER

Niamatullah, J.

1. This is an application for revision under Section 253, Agra Tenancy Act. A preliminary objection has been taken by learned Counsel for the opposite party that no revision lies. It is however necessary to state all the facts of the case before the preliminary objection can be decided, and as after hearing counsel I am of opinion that it cannot be sustained, I shall deal with it in the course of the judgment on the merits. The applicant is a tenant, other than a permanent, tenure-holder or a fixed rate tenant, of the opposite party at a certain annual rent. The latter instituted a suit for recovery of arrears of rent for certain years, and obtained a decree. The opposite party then made an application under Section 79, Agra Tenancy Act, praying that the decree be executed by the ejectment of the applicant. The Court issued a notice to her and on her appearance granted time for payment 'up to 1st March 1935'. The case was taken up on that date in the forenoon and, at any rate, not before 2 p.m., and as the record showed that no payment had been made, the Court passed an order of ejectment. The applicant turned up during the Court hours and represented that her impression was that the case would be taken up on 2nd March 1935 and that she had brought some money and was arranging for the rest. The Court rejected the application. She preferred an appeal in the Court of the District Judge who dismissed it. She came up to this Court in revision under Section 253, Tenancy Act, and showed her readiness to pay forthwith.

2. Her contention is that time having been granted to her up to and inclusive of 1st March 1935 the Assistant Collector had no jurisdiction to pass the order of ejectment before the expiry of that time. Learned Counsel for the opposite party maintains that no revision lies. Section 253, under which the revision has been filed, empowers the High Court to call for the record of any suit or application which has been decided by any subordinate revenue Court in which an appeal lies to the District Judge, and in which no appeal lies to the High Court. The grounds of revision are the same as are mentioned in Section 115, Civil P.C. It is admitted that no appeal lies to the High Court. The only question is whether an appeal lay to the District Judge from the order of the Assistant Collector directing the ejectment of the applicant under Section 80, Tenancy Act. Section 248, Tenancy Act, provides for appeals from certain orders, including those mentioned in Section 47, Civil P.C. If the proceedings for ejectment under Sections 79 and 80, Agra Tenancy Act, relate to the execution, discharge or satisfaction of the decree, there can be no doubt that the order of ejectment passed under Section 80 is an order of the kind contemplated by Section 47, Civil P.C. In my opinion proceedings under Sections 79 and 80, Agra Tenancy Act, do relate to the execution, discharge or satisfaction of the decree within the meaning of Section 47. In this view, an appeal clearly lay to the District Judge. Learned Counsel for the opposite party referred me to a ruling of the Board of Revenue in which a contrary view is said to have been taken. Only the headnote has been read out to me from a Digest. I am therefore not in a position to say what the precise ground of decision was. In any case, it is diametrically opposed to the view taken by a Division Bench of this Court in Faqira Singh v. Pardamand Kumar : AIR1932All92 in which it was definitely held that an order of ejectment passed under Section 80, Tenancy Act, is appealable to the District Judge under Section 248(3). It was further held in that case that a revision lies to the High Court, and not to the Board of Revenue. Accordingly I hold that this Court has jurisdiction to entertain the present revision under Section 253, Tenancy Act.

3. As regards the merits of the case, it is perfectly clear that the Assistant Collector, acted illegally in passing his order of ejectment before the expiry of the time given for payment. He should have allowed the proceedings, before him to remain pending for the whole of 1st March 1935 and if at any time on that day payment had been made, no order for ejectment could be legally passed. In ordering ejectment before the time allowed he acted illegally and, at least, with material irregularity in the exercise of his jurisdiction. In this view this application for revision is allowed. The order of ejectment, passed by the Assistant Collector, is set aside. The applicant shall be restored to possession if the arrears of rent decreed against her are paid in this Court by 16th January 1937. If payment is made the parties shall bear their own costs of this revision. If no payment is made the application for revision shall stand dismissed with costs.


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