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Madan Lal Vs. Bhagwan Das - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1899)ILR21All235
AppellantMadan Lal
RespondentBhagwan Das
Excerpt:
.....at the date of his ejectment suit. however this may be, it appears to us that the full bench did distinctly indicate their opinion that, in a suit for ejectment, such as the present, a decree for possession, with a conditional right to the defendant, should not be passed......below--there the court of first instance, here, the lower appellate court--gave the plaintiff a decree for possession with a conditional right to the defendant to redeem. before us the learned advocate for the plaintiff respondent has admitted that his client is not entitled to an absolute decree for possession. he has, however, argued that the case is distinguishable from hargu lal singh v. gobind bai, on the ground that here it is the lower appellate court which has given his client a decree for possession with a conditional right to the defendant to redeem, and that there is nothing in the full bench decision which necessarily implies that such a decree is wrong or requires this court in second appeal to set it aside. from the paper-book in the full bench case it appears that there.....
Judgment:

Arthur Strachey, C.J.

1. We do not think that we ought to allow the questions decided by the Full Bench of this Court in Hargu Lal Singh v. Gobind Rai (1897) I.L.R. 19 All. 541, so recently as July 1897, to be now reopened. The only question therefore upon which we have heard the learned pleaders on both sides is whether the present case is distinguishable from that decided by the Full Bench. The conclusion at which we have arrived is that there is no material distinction in principle between the two cases. Certain differences have been suggested in reference to the title set up by the defendant here; but these cannot make the oases distinguishable, for the decision of the Full Bench was necessarily irrespective of any view of the defendant's title, and based exclusively upon the failure of the plaintiff to prove a title to present possession at the date of his ejectment suit. Here, as there, the only title of the plaintiff was derived from a simple mortgage which did not entitle the mortgagee to possession as against any one, and a purchase under a decree for sale in a suit to which this defendant was not a party. Here, as there, the suit was an ordinary suit for ejectment, the plaintiff claiming to recover possession from the defendant absolutely and not subject to any condition. Here, as there, one of the Courts below--there the Court of First Instance, here, the Lower Appellate Court--gave the plaintiff a decree for possession with a conditional right to the defendant to redeem. Before us the learned advocate for the plaintiff respondent has admitted that his client is not entitled to an absolute decree for possession. He has, however, argued that the case is distinguishable from Hargu Lal Singh v. Gobind Bai, on the ground that here it is the Lower Appellate Court which has given his client a decree for possession with a conditional right to the defendant to redeem, and that there is nothing in the Full Bench decision which necessarily implies that such a decree is wrong or requires this Court in second appeal to set it aside. From the paper-book in the Full Bench case it appears that there the plaintiff, in his memorandum of appeal in this Court against the Lower Appellate Court's decree, absolutely dismissing the suit, pleaded that he was entitled, if not to an absolute, at least to a qualified, decree for possession, such as the first Court had given him. The Full Bench nevertheless dismissed the appeal, and did not give the plaintiff the qualified decree for possession which he asked for. It is suggested that that particular plea in the memorandum of appeal may not have been pressed before the Fall Bench, as the judgment does not refer to it. However this may be, it appears to us that the Full Bench did distinctly indicate their opinion that, in a suit for ejectment, such as the present, a decree for possession, with a conditional right to the defendant, should not be passed. They say that the plaintiff's suit 'was properly dismissed, though on other grounds;' in other words, that the Lower Appellate Court acted properly in setting aside the qualified decree for possession passed by the first Court, and in substituting for it a decree absolutely dismissing the suit, though it gave wrong reasons for doing so. It is impossible to suppose that they would have said that and proceeded to confirm the Lower Appellate Court's dismissal of the suit if they had thought that a qualified decree for possession, such as the first Court had passed, was right in such a suit. We cannot see any substantial distinction between this case and that. We must follow the decision in Hargu Lal Singh v. Gobind Rai, and the result is that we allow this appeal, set aside the decree of the Lower Appellate Court, and restore that of the first Court, dismissing the suit with costs in all Courts. Knox, Blair, Banerji, Burkitt and Aikman, JJ. concurred.


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