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Hazari Kalwar Vs. Abdul Majid Khan - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1934All293
AppellantHazari Kalwar
RespondentAbdul Majid Khan
Excerpt:
- - 32, in which it was held that in a case like this:.....to the defendant. no evidence was produced to prove this allegation; the courts below decreed the suit for possession of the property in favour of the plaintiff but they attached a term to the decree that he would have to pay a sum of rupees 150 out of the sum of rs. 225 to the defendant. the plaintiff has preferred this appeal against the decree of the court below and his contention is that an unconditional decree should have been passed in his favour. i have heard the learned counsel for the parties and i am of opinion that the decree passed by the court below imposing a condition that the plaintiff should pay a sum of rupees 150 to the defendant cannot possibly be supported. it appears from the judgment of the court below that the defendant had taken a plea that some fraud had been.....
Judgment:

Rahchpal Singh, J.

1. This is a second appeal by the plaintiff. On 22nd June 1928 the plaintiff granted a lease to the defendant in consideration of a sum of Rs. 515. The lessee agreed to pay rent at the rate of Rs. 37 yearly. The lease related to an agricultural holding. Out of the premium of Rs. 515 a sum of Rs. 225 was paid at the time of the registration of the lease deed and in respect of the remaining sum of Rs. 290, the agreement was that it would be paid on 30th October 1928, otherwise the lease would stand cancelled. It is admitted that the sum of Rs. 290 was not paid by the defendant in accordance with the terms of the lease. Thereupon the plaintiff instituted a suit which has given rise to this second appeal to get possession over the property leased; in the alternative he prayed that he should be given a decree for the sum of Rs. 290 which was still due from the defendant. The suit was resisted by the defendant, one of the pleas taken being that the lease did not cover the plots which the plaintiff had agreed to let to the defendant. No evidence was produced to prove this allegation; The Courts below decreed the suit for possession of the property in favour of the plaintiff but they attached a term to the decree that he would have to pay a sum of rupees 150 out of the sum of Rs. 225 to the defendant. The plaintiff has preferred this appeal against the decree of the Court below and his contention is that an unconditional decree should have been passed in his favour. I have heard the learned Counsel for the parties and I am of opinion that the decree passed by the Court below imposing a condition that the plaintiff should pay a sum of rupees 150 to the defendant cannot possibly be supported. It appears from the judgment of the Court below that the defendant had taken a plea that some fraud had been practised upon him; but no evidence was produced by him nor were any circumstances shown from which the Courts below have been in a position to gather that on account of any fraud the defendant was entitled to some relief. The Court below was not justified in saying in its judgment that it appeared that the plaintiff had been guilty of sharp practice; when at the same time it had to admit that there was no evidence on the record in support of this allegation. The learned Subordinate Judge has come to the conclusion that on an interpretation of the deed of lease, the defendant was entitled to recover back a part of the premium which he had paid at the time when the lease was executed. In my opinion, this view of the learned Subordinate Judge is not correct. On behalf of the appellant reliance is placed on a ruling of the Madras High Court reported in Kammaran Nambiar v. Chindan Nambiar (1895) 18 Mad. 32, in which it was held that in a case like this:

consideration paid for a lease is exhausted by the grant of the lease, and a tenant's forfeiture of the lease could not in the absence of a provision to that effect, operate so as to convert the original consideration into a debt which must be paid before the forfeiture could be enforced.

2. In the present case when the lease was given to the defendant, a part of the premium was paid and it was agreed that if the balance was not paid within the period fixed, the plaintiff would be entitled to recover the balance or to get possession over the property leased by cancellation of the lease. Under the terms of this lease, it cannot possibly be said that it was ever the intention of the parties that on the non-payment of the balance the plaintiff would be liable to refund a part of this premium which had been paid to him. For these reasons, I am of opinion that the decree of the Court below must be reversed. I therefore allow this appeal and modifiy the decree of the Court below and pass an unconditional decree in favour of the plaintiff for possession of the land in suit with costs in all the three Courts. The order of the Court below, directing the plaintiff to pay a sum of Rs. 150 to the defendant is set aside. The request for filing a Letters Patent Appeal is refused.


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