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Kedar and ors. Vs. Deo NaraIn and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Judge
Reported in30Ind.Cas.89
AppellantKedar and ors.
RespondentDeo NaraIn and anr.
Excerpt:
agra tenancy act (ii of 1901), section 32 - suit by transferee of a portion of fixed-rate holding for possession, maintainability of. - .....a.l.j. 735 : a.w.n. (1906) 274. section 32 of the agra tenancy act provides that 'no division of a holding or distribution of the rent payable in respect thereof, made by the co-sharers therein, shall be binding on the landholder, unless it is made with his consent.' clause 2 provides that 'no suit or other proceeding for the division of a holding or distribution of the rent thereof shall be entertained in any civil or revenue court.' it is quite clear that all that section 32 provides against is the splitting up of a holding or the distribution of the rent so as to bind the land-holders. clause 2 does no more than enact that a suit brought for such a purpose shall not be entertained by a civil or revenue court. in the present case the plaintiff alleges that he has become the owner.....
Judgment:

1. This appeal arises out of a suit in which the plaintiff claimed 1 biswa, which was alleged to lie part of 4 biswas which constituted a fixed-rate holding. The lower Courts and this Court have dismissed the suit as being barred by Section 32 of the Tenancy Act and as having been concluded by the authority of the case of Ackhey Lal v. Janki Prasad 29 A. 66 : 3 A.L.J. 735 : A.W.N. (1906) 274. Section 32 of the Agra Tenancy Act provides that 'No division of a holding or distribution of the rent payable in respect thereof, made by the co-sharers therein, shall be binding on the landholder, unless it is made with his consent.' Clause 2 provides that 'No suit or other proceeding for the division of a holding or distribution of the rent thereof shall be entertained in any Civil or Revenue Court.' It is quite clear that all that Section 32 provides against is the splitting up of a holding or the distribution of the rent so as to bind the land-holders. Clause 2 does no more than enact that a suit brought for such a purpose shall not be entertained by a Civil or revenue Court. In the present case the plaintiff alleges that he has become the owner entitled to possession of a portion of a fixed-rate tenancy and that the defendant is a trespasser. He does not ask for the division of the holding nor for the distribution of the rent. Hedges not seek to bind the landholder in any way by the suit he brings. It seems to us, therefore, that Section 32 does not bar the present suit. WG may mention that the case relied upon by the lower Appellate Court and the learned Judge of this Court has been overruled by the Full Bench decision in Najibullah v. Gulsher Khan 1 Ind. Cas. 594 : 31 A. 348 : 6 A.L.J. 343 (F.B.). As the suit was decided on a preliminary point in the lower Courts the case must be remanded. We accordingly allow the appeal, set aside the decree of this Court and also of both the Courts below, and remand the case to the Court of first instance through the lower Appellate Court with directions to re-admit the suit under its original number in the his and proceed to hear and determine the same according to law. Costs here and hither to will be costs in the cause.


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