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Radha Kishan Vs. Harjas and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1886)ILR8All256
AppellantRadha Kishan
RespondentHarjas and ors.
Excerpt:
.....limitation act or the rent act creating such a disability. i entirely concur in, and fully accept, the interpretation placed by the learned chief justice upon section 7 of act xii of 1881. it seems to me that the plaintiff's title to the possession of the land fails, and his case must therefore..........occupancy-tenant, but had ceased to be so by the operation of some rule of law, of which i am not aware, and which the learned judge does not mention in his judgment. if we were to allow the judgment of the learned judge to stand, we would be turning out of possession a person who is entitled to hold possession of the land sold by the operation of law. i entirely concur in, and fully accept, the interpretation placed by the learned chief justice upon section 7 of act xii of 1881. it seems to me that the plaintiff's title to the possession of the land fails, and his case must therefore fail.
Judgment:

Straight, Offg. C.J.

1. This is a suit brought by the plaintiff-respondent upon the strength of a deed of sale dated the 29th July 1879, to recover possession of one-third of a ten-biswansis share, which had been conveyed to him by the sale-deed executed by Didari, who was one of the three sharers who owned that ten biswansis share. The defence to the suit was that the land claimed by the plaintiff was the sir-land of the defendant, and that at the time of the sale of the one-third biswansis share he held it as his sir, and that by the operation of law he became the ex-proprietary tenant of the land. Now it is conceded that the defendants are the ex-proprietary tenants of the land in suit, and apparently the only contention seriously put forward on behalf of the plaintiff is, that because for four or five years the defendant failed to assert his ex-proprietary tenant rights, he is debarred from doing so now. But such a contention could only be a well-founded one had there been any provision either in the Limitation Act or the Rent Act creating such a disability. It has also been urged for the plaintiff that, inasmuch as he was in possession of this land as mortgagee at the time of sale, and continued to hold it afterwards, Didari, his vendor, did not 'hold' the land as his sir at the time of the sale of his proprietary interest within the meaning of Section 7 of Act XII of 1881. I do not concur in the construction which the learned pleader for the respondent places upon this section. I think that the words 'held by him as fair' must be construed to mean land belonging to him, or to which he was entitled, as sir. In my opinion, we ought to give as liberal an interpretation as is consistent with the canons of construction to these words. Otherwise it is easy to foresee how the door may be opened to the very mischief at which the Act aimed, by sales in future being preceded by a possessory mortgage of the land subsequently conveyed, so that the purchaser should be in possession of the sir at the date of sale, and thus be able to say that he and not the ex-proprietor held it at that time. Thus the provisions of the statute would be easily evaded. I think that this appeal must be decreed, and the decree of the first Court restored with costs in all Courts.

Mahmood, J.

2. I entirely concur in the order proposed by the learned Chief Justice, but I wish to add a few words. It is admitted by the plaintiff that the defendants are in possession of the land, which is the subject-matter of the suit. It is also granted that the only title on the basis of which the plaintiff claims this land, is the sale-deed dated the 29th July 1879. It seems to me that upon this state of things much less depends upon what the defendants can show than upon the title which the plaintiff can show. The learned District Judge seems to take it for granted that Didari was an occupancy-tenant, but had ceased to be so by the operation of some rule of law, of which I am not aware, and which the learned Judge does not mention in his judgment. If we were to allow the judgment of the learned Judge to stand, we would be turning out of possession a person who is entitled to hold possession of the land sold by the operation of law. I entirely concur in, and fully accept, the interpretation placed by the learned Chief Justice upon Section 7 of Act XII of 1881. It seems to me that the plaintiff's title to the possession of the land fails, and his case must therefore fail.


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