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Shitab Kuhwar Vs. Ghura - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1914)ILR36All248
AppellantShitab Kuhwar
RespondentGhura
Excerpt:
exproprietary tenant - mortage of sir land followed by a perpetual lease of the same--sale of mortgaged property in execution of decree--rights of auction purchaser as against perpetual lessee. - .....in the two plots, whilst this litigation was pending, the representative of the mortgagor made a perpetual lease in favour of the defendant.2. the plaintiff, who purchased under a sale held in execution of the decree, brings the present suit for physical possession of the two plots, alleging that the perpetual lease was fraudulent and collusive. it is quite clear as a general rule that a plaintiff in a suit for ejectment claiming physical possession must show a right to possession against all the world. it, therefore, becomes of importance to see whether, if the perpetual lease had never been made, the plaintiff would have been entitled to a decree for physical possession against the mortgagor. the tenancy act provides that when a proprietor's proprietary right is sold he ipso facto.....
Judgment:

Henry Richards, C.J. and Pramada Charan Banerji, J.

1. This appeal arises out of a suit for ejectment from two plots of sir land. It appears that the owner of the property made a mortgage. A decree for sale of the mortgaged property was made in the first instance granting a decree for sale of one of the two plots, and after some further litigation a decree for sale of the proprietary rights in the two plots, Whilst this litigation was pending, the representative of the mortgagor made a perpetual lease in favour of the defendant.

2. The plaintiff, who purchased under a sale held in execution of the decree, brings the present suit for physical possession of the two plots, alleging that the perpetual lease was fraudulent and collusive. It is quite clear as a general rule that a plaintiff in a suit for ejectment claiming physical possession must show a right to possession against all the world. It, therefore, becomes of importance to see whether, if the perpetual lease had never been made, the plaintiff would have been entitled to a decree for physical possession against the mortgagor. The Tenancy Act provides that when a proprietor's proprietary right is sold he ipso facto becomes an ex-proprietary tenant of his sir. This is a right which neither the court nor the proprietor himself can take away or give up. Consequently it is clear that the plaintiff would not have been entitled to a decree for possession against the mortgagor. This being so, it is clear that she cannot have a decree for possession against the present appellant. She is, no doubt, assuming the lease to be fraudulent, entitled to the rent which the ex-proprietary tenant ought to pay for the two plots. In our opinion the decree of the lower appellate court was under the circumstances a proper decree, and we accordingly allow the appeal, set aside the decree of this Court and restore the decree of the lower appellate court. We think under the circumstances (particularly as both parties contested the propriety of the decree of the lower appellate Court) that each partys should bear his own costs in this Court.


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