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Raj NaraIn Dube Vs. Syed Imam Raza and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1940All457
AppellantRaj NaraIn Dube
RespondentSyed Imam Raza and ors.
Excerpt:
- - admittedly the share in the grove land was part of the zamindari and was held and enjoyed by ghasiawan as a zamindar. 3. upon the whole matter we are satisfied that the one-third share of grove land formed part of the zamindari holding of the judgment-debtor at the time of the auction sale and that by that sale it passed to the plaintiff......deolasi in the district of mirzapur. this share in the grove-land appertains to a 5 annas 4 pies share in mahal no. 69. the share belongs to one ghasiawan. ghasiawan sold three-quarters of his share in the village and retained to himself a 1 anna 4 pies share. he exempted from the sale deed his share in the grove-land which appertained to the zamindari. the plaintiff syed imam raza is an auction-purchaser at the sale of the said remaining 1 anna 4 pies share which ghasiawan retained in the mahal. he claims that in purchasing this 1 anna 4 pies share he purchased the one-third share in the grove-land which was owned by ghasiawan. the defendants on the other hand maintained that only one-twelfth of the grove-land passed to the plaintiff by the auction sale. the remainder remained.....
Judgment:

Thom, C.J.

1. This is a defendant's appeal arising out of a suit for possession. The plaintiff in the suit seeks possession of a share in grove-land in the village Deolasi in the district of Mirzapur. This share in the grove-land appertains to a 5 annas 4 pies share in mahal No. 69. The share belongs to one Ghasiawan. Ghasiawan sold three-quarters of his share in the village and retained to himself a 1 anna 4 pies share. He exempted from the sale deed his share in the grove-land which appertained to the zamindari. The plaintiff Syed Imam Raza is an auction-purchaser at the sale of the said remaining 1 anna 4 pies share which Ghasiawan retained in the mahal. He claims that in purchasing this 1 anna 4 pies share he purchased the one-third share in the grove-land which was owned by Ghasiawan. The defendants on the other hand maintained that only one-twelfth of the grove-land passed to the plaintiff by the auction sale. The remainder remained with Ghasiawan and on his death passed to his representatives.

2. There is no question that after the sale of a proportion of his holding in the zamindari Ghasiawan remained a zamindar in the mahal. His share was then a 1 anna 4 pies share. His share in the grove-land of the mahal however was more than a 1 anna 4 pies share; it was a one-third share as he had exempted the grove-land from the private sale of a proportion of his zamindari. It was contended for the appellant that of the one-third share in the grove-land which Ghasiawan retained for himself only a proportion could be regarded as appertaining to the 1 anna 4 pies share which was left after the private sale. No authority was adduced by counsel for the defendant in support of this proposition and upon general principle we are unable to accept it. If a zamindar plants a grove in the village in which he is a zamindar that grove appertains to his share in the zamindari. We see no reason why, if he elects to sell part of his zamindari holding and retain his entire share in the grove land that entire share should not continue to appertain to his remaining share in the village. It was suggested by counsel that a portion of the share in the grove land was held by Ghasiawan as zamindar and the remaining portion which would have passed had it not been excluded from the private sale was held by him in some other capacity. What that capacity was learned Counsel was unable to explain and we are unable to say from the information upon record in what capacity he could have held that share other than in his capacity as zamindar. Admittedly the share in the grove land was part of the zamindari and was held and enjoyed by Ghasiawan as a zamindar. It appertained therefore to his holding as a zamindar.

3. Upon the whole matter we are satisfied that the one-third share of grove land formed part of the zamindari holding of the judgment-debtor at the time of the auction sale and that by that sale it passed to the plaintiff. The plaintiff is accordingly entitled to the decree which he seeks. In the result the appeal is dismissed with costs. There is no force in the cross-objection. The findings referred to in the cross-objection are findings in fact which cannot be disturbed. The cross-objection is accordingly dismissed with costs.


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