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Basdeo Singh Vs. Sheo Shankar Halwai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1941All396
AppellantBasdeo Singh
RespondentSheo Shankar Halwai and ors.
Excerpt:
.....the wajib-ul-arz, it is manifest that the two appeals of the plaintiffs were bound to fail and the appeal of the auction purchaser had to be allowed. we are in perfect agreement with the late learned chief justice as regards the interpretation of the wajib-ul-arz. 1164, 1165 and 1870 of 1936 must, therefore, fail and are dismissed with coats. nazir husain air1941all173 one of us held that when a custom is established that the zamindar is entitled to a 1/4th share of the sale proceeds (zar-i-chaharurn) the custom applies to auction sales as well. 47, we must hold that the learned chief justice was right in holding that the plaintiffs were not entitled to a decree with respect to the zar-i-chaharum as against the ryots as well. 1174 of 1936 must, therefore, also fail and is dismissed with..........respect to the zar-i-chaharum as against the ryots as well. the letters patent appeal arising out of second appeal no. 1174 of 1936 must, therefore, also fail and is dismissed with costs. the result is that in three out of the four suits the decrees of the trial courts as against the ryots will stand and in the fourth suit the plaintiffs' claim will stand dismissed as against all the defendants.
Judgment:

Iqbal Ahmad, C.J.

1. This and the connected Letters Patent Appeals Nos. 34, 35 and 36 of 1939 arise out of four suits brought by Basdeo Singh and others, plaintiffs, for recovery of haq-i-chaharum, viz., one-fourth of the purchase price of certain houses. The plaintiffs in all the four suits were the zamindars. The houses were sold in execution of certain decrees against the ryots to whom the houses belonged and were purchased by certain persons. The ryots and the auction purchasers were impleaded as defendants to the suits. Three out of the four suits were tried by one Munsif whereas the fourth suit was tried by another Munsif. All the four suits were decreed by the trial Courts as against the ryots, but were dismissed as against the auction purchasers. Four appeals were filed by the plaintiffs in the lower appellate Court as against the decrees in the four suits. One of the defendants, Raghunath Kalwar, also filed an appeal against the decree in one of the suits (suit No. 459). There were thus in all five appeals arising out of the four suits for disposal by the lower appellate Court. Four of the appeals that arose out of suits Nos. 96, 441 and 459 of 1933 were heard and disposed of by Mr. Sheo Harakh Lal on 16th March 1936. He dismissed all the four appeals arising out of the three suits just mentioned. In short, he affirmed the decree of the trial Court in the three suits. The fifth appeal that arose out of suit No. 494 was decided by Mr. Sheo Harakh Lal on 28th August 1936. By his decree he modified the decree of the trial Court and granted to the plaintiffs a decree not only against the ryots, but also against the auction purchasers.

2. Four second appeals were filed in this Court against the decrees in the four suits. Two of the appeals were by the plaintiffs, one by the auction purchasers and one by the ryots. We are informed that the second appeals by the plaintiffs were numbered as Second Appeals Nos. 1164 and 1165 of 1936 and the appeal by the auction purchasers was numbered as Second Appeal No. 1870 of 1936 and the appeal by the ryots was numbered as Second Appeal No. 1174 of 1936. All the four appeals were heard and decided by the late Chief Justice on 20th December 1938. He dismissed the appeals filed by the plaintiffs and affirmed the decrees of the trial Courts in the suits out of which those two appeals had arisen. He allowed the appeals filed by the auction purchasers and the ryots. In the appeal filed by the auction purchasers he set aside the decree of the lower appellate Court and restored the decree of the trial Court. In the appeal filed by the ryots he set aside the decisions of the Courts below and dismissed the suit.

3. The learned Chief Justice disposed of all the four appeals by one single judgment. He, relying on the Full Bench decision of this Court in Kalian Das v. Bhagirathi ('83) 6 All. 47, held that the proof of a custom whereby the zamindar of a village is entitled to 1/4th of the purchase money when a house in a village is sold privately is not proof of a similar custom in respect of sales in execution of decrees. He further (held that in accordance with the custom as evidenced by the wajib-ul-arz of the village 1/4th of the purchase money could be realised only from the ryots and not from the vendees. In view of the interpretation put by him on the wajib-ul-arz, it is manifest that the two appeals of the plaintiffs were bound to fail and the appeal of the auction purchaser had to be allowed. We are in perfect agreement with the late learned Chief Justice as regards the interpretation of the wajib-ul-arz. Three of the Letters Patent appeals before us arising out of Second Appeals Nos. 1164, 1165 and 1870 of 1936 must, therefore, fail and are dismissed with coats.

4. It remains to consider the Letters Patent appeal that arises out of Second Appeal No. 1174 of 1936 which was filed in this Court by the ryots. They contested the right of the plaintiffs to 1/4th of the purchase money paid by the auction purchaser. The learned Chief Justice, relying on the Full Bench decision referred to above, held that the plaintiffs were not entitled to a decree even as against the ryots. In the course of his judgment the learned Chief Justice referred to an earlier Full Bench decision of this Court in Heera Ram v. Raja Deo Narain Singh (1867) Agra H.C.R. 63 (F.B.), but held that that case had no reference to an auction sale. It will be noted that in the 1867 Full Bench case the Court was not concerned with the consideration of the question whether a custom entitling a zamindar to realise 1/4th of the purchase money in the case of a voluntary sale does also entitle the zamindar to realise 1/4th of the price in the case of a compulsory sale. That question was not before that Full Bench, but was considered and decided by the Full Bench that decided the case in Kalian Das v. Bhagirathi ('83) 6 All. 47. The Full Bench decision in Kalian Das v. Bhagirathi ('83) 6 All. 47 is binding on us. We may note in passing that in the recent case in Radhey Shiam v. Nazir Husain : AIR1941All173 one of us held that when a custom is established that the zamindar is entitled to a 1/4th share of the sale proceeds (zar-i-chaharurn) the custom applies to auction sales as well. The Full Bench case in Kalian Das v. Bhagirathi ('83) 6 All. 47 was not cited in arguments in Radhey Shiam v. Nazir Husain : AIR1941All173 . Had it been cited, the decision would have been the other way. In view of the Full Bench decision in Kalian Das v. Bhagirathi ('83) 6 All. 47, we must hold that the learned Chief Justice was right in holding that the plaintiffs were not entitled to a decree with respect to the zar-I-chaharum as against the ryots as well. The Letters Patent appeal arising out of Second Appeal No. 1174 of 1936 must, therefore, also fail and is dismissed with costs. The result is that in three out of the four suits the decrees of the trial Courts as against the ryots will stand and in the fourth suit the plaintiffs' claim will stand dismissed as against all the defendants.


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