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Hasan Ali Khan and anr. Vs. Mazhar-ul-hasan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1907)ILR29All318
AppellantHasan Ali Khan and anr.
RespondentMazhar-ul-hasan and ors.
Excerpt:
act no. xix of 1878 (n.w.p. land revenue act), sections 154 and 190 - mahal taken under direct management--rent of sir land fixed by collector--sale of mahal before release from direct management. - - in connection with this argument we would point out that section 190 of the revenue act provides for the case of sale for arrears of revenue as well as for cases of attachment, farming, etc, and directs that on sale the collector is to have the late proprietor of any sir land recorded as an ex-proprietary tenant and to fix the rent to be paid by the ex-proprietary tenant for the land. that rent clearly was not a rent payable to the collector, but to the new proprietor......had up to then been paying to the collector. 'we are unable to accept the contention that the rent fixed by the collector was fixed only for the period of direct management, and that it ceased to be payable when the collector handed over the mahal to the plaintiffs. in the section itself there is no indication of such an intention. it does not even prescribe the person to whom the rent is to be paid. it is couched in moat general and wide language and might well--without straining of language--be interpreted to mean a determination of rent to hold good till altered by competent authority. in connection with this argument we would point out that section 190 of the revenue act provides for the case of sale for arrears of revenue as well as for cases of attachment, farming, etc, and.....
Judgment:

John Stanley, C.J. and William Burkitt, J.

1. This is an appeal against a decree of one of the learned Judges of this Court sitting alone.

2. The suit was instituted against one Ali Mazhar as an exproprietary tenant to recover the rent of certain lands which had been his sir. He had been the proprietor of the mahal in which he held this sir land. Many years ago Ali Mazhar made default in paying the revenue assessed on the mahal, whereupon the Collector, acting under the powers conferred on him by the North-Western Provinces Land Revenue Act of 1873, Section 154, attached the mahal and took it under direct management. At the same time acting under the provisions of Section 190 of the same Act, the Collector fixed the rent to be paid in future by Ali Mazhar in respect of this land. Ali Mazhar was recorded as an ex-proprietary tenant. This suit is one to recover the rent so fixed, and alleged to be due and payable for the years 1308 and 1309 Fasli by the respondents, the representatives in interest of Ali Mazhar now dead, That rent was paid for many years by Ali Mazhar as the rent of the ex-proprietary holding. On January 20th, 1899, Ali Mazhar's rights as proprietor of the mahal were sold in execution of a Civil Court decree, held by the Bank of Upper India and were purchased by one Gobind Deo. Gobind Deo had his name entered as proprietor and that of Ali Mazhar removed. Gobind Deo of course did not get actual possession of the mahal, which continued to be held under direct management. Eventually Gobind Deo sold the mahal in June 1901 to the plaintiffs appellants, who obtained mutation of names in their favour in August of that year. In that month they paid to the Collector the arrears of revenue still due on the mahal, which was thereupon released from direct management and handed over to them. That was on August 27th, 1901.

3. From the above it will be seen that Ali Mazhar ceased to be even, nominal proprietor of the mahal in the year 1899 when his name was removed from the village khewat, but he continued to be recorded as an ex-proprietary tenant, paying the rent which had been fixed by the Collector.

4. The present suit for the arrears of rent for the years 1308 and 1309 Fasli was instituted in October 1902. We are now concerned with the rent of 1309 Fasli only.

5. The Court of first instance and the lower appellate Court gave the plaintiffs a decree for the rent of that year. On second appeal to this Court that decree has been set aside and the suit dismissed by a learned Judge of the Court, Hence this appeal.

6. The reasons given by our learned brother for reversing the decree of the two lower Courts are: 'I hold that the rent not having been fixed by agreement, by order of a Settlement officer or by an order under Act No. XII of 1881, it was incumbent on the plaintiffs, before they could recover arrears of rent on the ex-proprietary holding, to take steps to have the rent determined under the Rent Act.' Now if Ali Mazhar had ever for a day regained his status as a proprietor before the sale of the mahal to the respondents, we might have come to the same conclusion as our learned brother. If the attachment and direct management had been withdrawn, Ali Mazhar would have immediately regained his status as full proprietor and would have automatically ceased to be an ex-proprietary tenant. On a subsequent sale to the plaintiffs and on Ali Mazhar again becoming an ex-proprietary tenant the plaintiffs in the absence of any agreement must have applied to have the rent of the ex-proprietary holding determined under the Rent Act. But such an event did not occur. From and after the date of the sale to Gobind Deo in 1899 Ali Mazhar no longer possessed any proprietary rights in the mahal. He remained an ex-proprietary tenant whose rent had been fixed by the Collector, and he still held that status when the plaintiffs purchased the mahal. In our opinion when the mahal was transferred to the plaintiffs by the Collector in August 1901, the position of Ali Mazhar was that of a tenant whose rent had been fixed by a Competent tribunal, and the plaintiffs on the transfer to them acquired the right to recover the rent which Ali Mazhar had up to then been paying to the Collector. 'We are unable to accept the contention that the rent fixed by the Collector was fixed only for the period of direct management, and that it ceased to be payable when the Collector handed over the mahal to the plaintiffs. In the section itself there is no indication of such an intention. It does not even prescribe the person to whom the rent is to be paid. It is couched in moat general and wide language and might well--without straining of language--be interpreted to mean a determination of rent to hold good till altered by competent authority. In connection with this argument we would point out that Section 190 of the Revenue Act provides for the case of sale for arrears of revenue as well as for cases of attachment, farming, etc, and directs that on sale the Collector is to have the late proprietor of any sir land recorded as an ex-proprietary tenant and to fix the rent to be paid by the ex-proprietary tenant for the land. That rent clearly was not a rent payable to the Collector, but to the new proprietor. The Collector could have no claim to it. But under the rule of law laid down by our learned brother the new proprietor would not be entitled to recover any rent of the ex-proprietary holding until he had had the rent of the holding determined under Section 14 of the Rent Act, XII of 1881. We are unable to accede to that view of the law. We think that the new proprietor would be entitled to receive from the ex-proprietor the rent fixed by the Collector under the authority of Section 190, and that the law does not impose on him the vexatious burden of taking action under Section 14 of the Rent Act. Similarly in the present case we think the plaintiffs are entitled to receive from the ex-proprietary tenants the rent fixed by the Collector, who in that matter was a competent tribunal acting under statutory power. We do not concur with the District Judge in holding that the Collector's procedure in fixing the rent was irregular. He ascertained the rates of rents payable by tenants-at-will for similar lands and fixed the rental of the ex-proprietary tenant at four annas in the rupee lower. Ali Mazhar apparently raised no objection and paid, for many years the rent so fixed.

7. For the above reasons, being unable to agree in the reasons given by our learned brother, we set aside the decree under appeal and restore the decree of the lower appellate Court with costs.


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