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Gaya Prasad Vs. Secy. of State - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Reported inAIR1939All263
AppellantGaya Prasad
RespondentSecy. of State
Excerpt:
- - one of these arguments was that the municipal board bad granted permission to miss bailey for the sale of the land and had granted permission to gaya prasad to build on the land and in this connexion learned counsel referred to the provisions of section 188, contract act, that an agent having authority to do an act has authority to do every lawful thing which is necessary in order to do such act......are as follows:all provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute of enactment of the legislature to the contrary notwithstanding.2. the crown therefore is not bound by any of the sections of the tenancy act or the transfer of property act or the conifer-act act in the present case. regard must be had by the courts to the terms of the grant which are admittedly here shown by the kabuliat of 1st february 1887. we do : not think that the point is of any importance as to whether the small piece of ground 70 ft. by 20 ft. was granted for the purpose of a flower garden or for the purpose of adding it to the existing grove of william barrett which is.....
Judgment:

Bennet, J.

1. This is a second appeal by the defendant Gaya Prasad against a decree for ejectment of the defendant from a certain portion of nazul plot No. 663 enclosed in red lines in mohalla Colonelganj, Allahabad city, which plot appertains to mauza Fatehpur-Bichhua. It is common ground that this portion in red lines was granted by the Secretary of State on 1st February 1887 to one William Barrett who executed a kabuliat on that date. The claim for the Secretary of State was that William Barrett died some fifteen years ago and was succeeded by his heir a Miss Jane Bailey and on 22nd July 1928 Miss Bailey executed a sale deed in favour of the appellant Gaya Prasad and that Gaya Prasad had dug foundations for a building on this plot of land. The claim for the plaintiff was that the transfer was illegal and alternatively if it were found that the transferor was entitled to transfer as a grove-holder, then there should be ejectment, under the provisions of Section 84, Agra Tenancy Act, of Gaya Prasad on the ground that he had done an act which was inconsistent with the purpose for which the holding was let. The main ground however was that the grant was not transferable. The Courts below have found in favour of the plaintiff. In appeal various arguments have been raised. One of these arguments was that the Municipal Board bad granted permission to Miss Bailey for the sale of the land and had granted permission to Gaya Prasad to build on the land and in this connexion learned Counsel referred to the provisions of Section 188, Contract Act, that an agent having authority to do an act has authority to do every lawful thing which is necessary in order to do such act. This defence of fluency had not been taken in the Court below. It is true that the Assistant Collector in his judgment said that the plaintiff alleged that the land in dispute was nazul administered, by the Municipal Board but we find no such allegation in the plaint find this is apparently due to some misunderstanding and learned Counsel for the appellant did not show any such admission on behalf of the plaintiff on the record. The Municipal Board grants permission for building in the ordinary course of affairs but it does not follow that its permission Us in regard to nazul. In any case the Section of the Contract Act on which learned counsel relies has no binding effect on Government for the simple reason that the terms of the Crown Grants Act (15 of 1895), Section 3, are as follows:

All provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute of enactment of the Legislature to the contrary notwithstanding.

2. The Crown therefore is not bound by any of the Sections of the Tenancy Act or the Transfer of Property Act or the Conifer-act Act in the present case. Regard must be had by the Courts to the terms of the grant which are admittedly here shown by the kabuliat of 1st February 1887. We do : not think that the point is of any importance as to whether the small piece of Ground 70 ft. by 20 ft. was granted for the purpose of a flower garden or for the purpose of adding it to the existing grove of William Barrett which is mentioned in Certain robkars of the previous year. The rant does in fact refer to trees. But, even if the land was to be used as a grove the tenant would not get the rights of a grove-holder since the law in regard to groves could not override Section 3, Crown Grants Act. It is only by analogy that any of these Sections could be applied. As regards the grant being transferable or heritable, learned counsel for the appellant relied on the words

If in any year I do not pay the above sum... the Collector will have the right to have it realized... from the property of the executant or his heir or legal representative or any person in posessition of the land without bringing any suit in the Civil Court.

3. This appears to be merely a provision to finable Government to realize the rent in the year in which the tenant dies and the grant is not made to the tenant and his heirs or assigns. The grant is merely that William Barret shall pay a rent of Rupees. 3-12-0 a year and shall bring the land to his use. There is nothing to show that the grant was to be a permanent one. The mere fact that no term is indicated does not make a permanent grant. A grant is resumableby Government at any time and there is nothing in the terms of this grant to make it transferable by William Barret, nor is there any provision that his heirs should hold after him. No limit of time applies to Government in its resumption of a grant. In the present case the suit has been brought for resumption and there is no reason whatever why it should not be granted. It may be noted that the grant has been violated by the transfer by sale of 22nd July 1928 and any sanction of the Municipal Board would not make that transfer valid. Secondly, the grant was; violated by the appellant digging foundations with the intention of making a building. The grant is not for the purpose of making a building but for the purpose of planting a garden or grove (lagane bagb.'). Thirdly, the grant was violated by Gay a Prasad, the present occupant, setting up title in himself which was in issue before the Assistant Collector and was the subject of a reference to the Munsif and was again the subject of a claim apparently before the-lower Appellate Court where the appellant claimed to have heritable and transferable-rights. As regards the power of Municipal-Boards the quotation of the Court below from the Municipal Manual, p. 261, shows that 'Nazul is at all times liable to resumption by the Government.' Therefore no matter what action is taken by the Municipal Board the power of Government to-resume the nazul remains. For these reasons we consider that the Court below was correct in decreeing this suit for resumption, and we dismiss this second appeal with, costs.


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