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Yakub Ali Vs. Tajammul HusaIn Khan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1932All653
AppellantYakub Ali
RespondentTajammul HusaIn Khan and anr.
Excerpt:
- - the defendants, being apprehensive of the fact that the word 'malikan' my be deemed to include the plaintiff as well, took proceedings in the revenue court for correction of the said entry and their application was allowed and it was ordered that the defendants, who were the heirs of ali mohammad khan, were the sole sir holders and that the other heirs of ali mohammad khan, who had parted with their shares could at best acquire exproprietary rights, and that the present plaintiff, who was a mere transferee, could not acquire and did not hold sir rights in the plots in question. ' he contends that as land includes a grove land, the transferors of the plaintiff must be deemed to have acquired exproprietary rights not only in the site of the grove but in the grove as well......by section 3(2) of that act means 'land which is let or held for agricultural purposes or as grove land or for pasturage.' he contends that as land includes a grove land, the transferors of the plaintiff must be deemed to have acquired exproprietary rights not only in the site of the grove but in the grove as well. the argument overlooks the distinction between a grove and grove land. land, as defined by the present tenancy act, includes grove land as defined by section 3, clause 15 of that act, but does not include the grove itself, and therefore when a tenant acquires exproprietary rights in accordance with section 14 of the act, those exproprietary rights appertain only to the grove land, provided that was his sir but do not touch the grove which in the absence of a stipulation.....
Judgment:
ORDER

Iqbal Ahmad, J.

1. This is a plaintiff's application in revision against the order of the learned Small Cause Court Judge of Farrukhabad directing the plaint to be returned to the plaintiff for presentation in the revenue Court. The suit out of which this application arises was brought by the plaintiff for recovery of his share of the price of the fruits of two groves> one being situate in patti 33 of village Amethi Jadid and the other in patti 10 of village Nibalpur. The fruits of the two groves were admittedly sold by the defendants and the price of the same was realized by them. The suit was contested on a variety of grounds and the learned Judge of the Court of Small Causes recorded findings on many of those points, but as the order sought to be revised before me was based on his finding that he had no jurisdiction to entertain the suit, I need not notice the other points raised in defence or the findings of the learned Judge on those points. In order to appreciate the question of jurisdiction raised by the defendants it is necessary to state certain facts.

2. The pattis in which the groves in dispute are situate originally belonged to a man named AH Mohammad Khan. He died leaving two sons named Ali Ahmad and Abdul Majid and three daughters named Benarsi, Jafri and Neyaz Begum and a widow named Verasat Jahan. The defendants to the present suit are the sons of Benarsi Begum, one of the daughters of AH Mohammad Khan, and by right of inheritance from her and by certain transfers made by the other co-sharers of Benarsi Begum they admittedly have acquired a 7 annas share in the estate of Ali Mohammad Khan. The plaintiff, on the other hand, has acquired by means of certain transfers a 7 annas 6 pies share in the pattis in dispute. Out of the 7 annas 6 pies share the plaintiff had purchased a 2 annas 6 pies share from a lady named Ewaz Jahan, the widow of Abdul Majid, the son of Ali Mohammad Khan. It appears that the plots on which the groves in question are situate were recorded in the revenue papers as sir malikan. The defendants, being apprehensive of the fact that the word 'malikan' my be deemed to include the plaintiff as well, took proceedings in the revenue Court for correction of the said entry and their application was allowed and it was ordered that the defendants, who were the heirs of Ali Mohammad Khan, were the sole sir holders and that the other heirs of Ali Mohammad Khan, who had parted with their shares could at best acquire exproprietary rights, and that the present plaintiff, who was a mere transferee, could not acquire and did not hold sir rights in the plots in question. It further appears that Ewaz Jahan Begum, after selling her share to the plaintiff was declared an exproprietary tenant with respect to her share in the plots in which she had sir rights and rent was assessed on her exproprietary tenancy by the revenue Court.

3. The defendants' contention in the Court below was that as they were the sole sir holders of the plots on which the groves were situate and, as such, in exclusive possession of the same, and further that, as the plaintiff was a mere cosharer in the pattis in which the said groves lie, the only remedy of the plaintiff was to sue the defendants in the revenue Court for his share of the profits of the pattis in question, and that the suit was not cognizable by the civil Court. They also contended that the plaintiff having got rent fixed on the exproprietary holding of Mt. Ewaz Jahan was only entitled to recover from he the rent assessed and was not entitled to that portion of the price of the fruits of the groves that was represented by the share of Mt. Ewaz Jahan in the same. The learned Small Cause Court Judge after an elaborate survey of the various litigations between the parties both in the civil and the revenue Courts was of opinion that the latest decision of the revenue Court being to the effect that the defendants alone are entitled to the sir rights, the revenue Court alone was competent to give relief to the plaintiff in a suit for profits filed under Sections 226 or 227, Agra Tenancy Act. 'With this conclusion of the Court below I am unable to agree and in my judgment the suit was cognizable by the Court below. My reasons for arriving at this conclusion are as follows:

4. On the sale of the proprietary rights of the various cosharers in the pattis in question their rights in the trees along with their proprietary rights in the pattis passed to the present plaintiff. In other words, by the transfer of the proprietary rights of the various cosharers in his favour, the plaintiff also acquired the rights of the transferors in the groves in dispute. It is true that the land on which the groves in dispute are situate was the sir land of the transferors but the sir rights were confined to the land and obviously did not extend to the trees. By the loss of their proprietary rights the transferors undoubtedly acquired exproprietary rights in their sir, but such exproprietary rights would be confined only to the land and would have no connexion whatsoever with the trees of the groves in question. It follows therefore that the order of the revenue Court fixing rent on the exproprietary holding of the transferors must have reference to the land in which the exproprietary rights have been acquired and the transferors by the mere fact of having acquired exproprietary rights in the land, cannot lay any claim to the trees that on the transfer of their shares passed to the transferee, that is to the plaintiff. Mr. Abdul Aziz, who had very ably argued this case, has called my attention to the definition of land in the present Tenancy Act 3 of 1926. Land as defined by Section 3(2) of that Act means 'land which is let or held for agricultural purposes or as grove land or for pasturage.' He contends that as land includes a grove land, the transferors of the plaintiff must be deemed to have acquired exproprietary rights not only in the site of the grove but in the grove as well. The argument overlooks the distinction between a grove and grove land. Land, as defined by the present Tenancy Act, includes grove land as defined by Section 3, Clause 15 of that Act, but does not include the grove itself, and therefore when a tenant acquires exproprietary rights in accordance with Section 14 of the Act, those exproprietary rights appertain only to the grove land, provided that was his sir but do not touch the grove which in the absence of a stipulation to the contrary must be deemed to have passed to the transferee on the transfer of the proprietary rights of the transferor in the mahal. I am not overlooking the fact that under the present Tenancy Act a grove holder is a tenant, but in the present case the position of the transferors of the plaintiff is certainly not of grove holders.

5. From what I have stated above it follows that the plaintiff is one of the proprietors of the groves in dispute. The defendants are also co-owners of the same. It being common ground that the defendants have realized the whole of the sale price of the fruits of the groves, they are in law bound to pay to the plaintiff his share in the same. The claim of the plaintiff being not for a share of the profits of the mahal, but for his shire of the price of the fruits of a grove jointly owned by him with the defendants, the cognizance of the suit by the civil Court is not barred by any section of the Agra Tenancy Act and, as such, the Court below was competent to entertain the present suit. For the reasons given above I allow this application, set aside the order of the Court below and remand the case to that Court with directions to restore it to it original number and dispose of it according to law. Costs here and hitherto shall he costs in the cause and shall abide the result.


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