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Ali Raja Khan Vs. Muhammad Zafar Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Reported inAIR1930All311
AppellantAli Raja Khan
RespondentMuhammad Zafar Khan and ors.
Excerpt:
- .....the defendants have been in possession of these four sir plots ever since. in 1917 there was an auction sale of a two anna share held by the mortgagors of the plots and in the sale proclamation it was specified that it was to be sold subject to the usufructuary mortgage of these four plots in favour of the defendants. at the auction sale the defendants bought this share and took possession on 2nd august 1921. subsequently, the plaintiffs claimed ex proprietary rights and obtained a final order of the revenue court in appeal dated 31st october 1924 to the effect that plaintiffs were the ex-proprietary tenants of these plots.2. the case was argued on appeal in this court on the ground that the period of limitation of six months allowed under section 79, act 2 of 1901, for a tenant to.....
Judgment:

1. These are two Letters Patent appeals against the decision of a learned single Judge of this Court dismissing the appeals of the defendants. The plaintiffs obtained decrees for ejectment of the defendants in the revenue Courts under Sections 58 and 34, Act 2 of 1901. The facts in S.A. No. 525 of 1927 are that in 1897 the plaintiffs mortgaged four sir plots to the defendants with possession and the defendants have been in possession of these four sir plots ever since. In 1917 there was an auction sale of a two anna share held by the mortgagors of the plots and in the sale proclamation it was specified that it was to be sold subject to the usufructuary mortgage of these four plots in favour of the defendants. At the auction sale the defendants bought this share and took possession on 2nd August 1921. Subsequently, the plaintiffs claimed ex proprietary rights and obtained a final order of the revenue Court in appeal dated 31st October 1924 to the effect that plaintiffs were the ex-proprietary tenants of these plots.

2. The case was argued on appeal in this Court on the ground that the period of limitation of six months allowed under Section 79, Act 2 of 1901, for a tenant to sue his landholder for possession had expired. But that section does not apply to the present case because, as stated in the section, it applies to tenants who are ejected. Now, the present plaintiffs have never been ejected, for plaintiffs have not been in possesion from the time when the defendants entered into possession as usufructuary mortgagees.

3. We may refer to the case of the Collector of Benares v. Shiam Das [1915] 13 A.L.J. 329 for the proposition that a tenant not in possession does not come under Section 79, Act 2 of 1901. We may note that in our opinion the Courts were correct in holding that there was a merger of the mortgagee rights of the defendants with the proprietary rights that the defendants purchased in the auction sale in 1917 and no point as regards a mortgagee in possession has been raised in appeal to the High Court. Accordingly we dismiss this appeal.


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