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Ghasitoo Mal Vs. Asa Ram - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1940All17
AppellantGhasitoo Mal
RespondentAsa Ram
Excerpt:
- .....the exproprietary tenant merely of the vendee but of the whole coparcenary body. apparently in the rent suit the parties each accepted the proposition that this rule of law which is intended for general purposes would not apply in this special case. no doubt this was more convenient for the purpose because there are only two cosharers in the khewat number, the plaintiff and the defendant, and there would be no point in the defendant paying a share of exproprietary rent to himself. therefore it was doubtless intended that he should pay the whole of his exproprietary rent to the plaintiff and that the plaintiff would accept this as his share of the profits of that portion of the khewat number which had been originally represented by 32 bighas of sir. having obtained a decree for the whole.....
Judgment:

Bennet, J.

1. This is a second appeal by the plaintiff who has been granted a decree for profits by the Revenue Court and who appealed in regard to a claim of his for a share of the profits of the sir land and the learned District Judge dismissed that appeal. The circumstances are that in a particular khewat number the defendant Asa Ram was the sole owner and he had 32 bighas of sir in his possession. He executed a sale deed for one-sixth share of the zamindari rights in this khewat number to the plaintiff. Proceedings were taken under Section 36, Land Revenue Act, for assessing the rent on the exproprietary holding for the years in suit the plaintiff brought a suit for arrears of exproprietary rent against defendant. In that suit the plaintiff claimed the whole of the exproprietary rent. Actually, in accordance with the various rulings of this Court the plaintiff was only entitled to one-sixth of the exproprietary rent because in accordance with those rulings the exproprietary tenant is not the exproprietary tenant merely of the vendee but of the whole coparcenary body. Apparently in the rent suit the parties each accepted the proposition that this rule of law which is intended for general purposes would not apply in this special case. No doubt this was more convenient for the purpose because there are only two cosharers in the khewat number, the plaintiff and the defendant, and there would be no point in the defendant paying a share of exproprietary rent to himself. Therefore it was doubtless intended that he should pay the whole of his exproprietary rent to the plaintiff and that the plaintiff would accept this as his share of the profits of that portion of the khewat number which had been originally represented by 32 bighas of sir. Having obtained a decree for the whole amount of the exproprietary rent the plaintiff now claims in appeal and in second appeal that he should receive one-sixth share of the remaining amount of the 32 bighas which is represented by approximately 26 bighas of sir. If we acceded to his request this would mean that he would obtain a larger share of the profits of the khewat number than is equitable; that is, he is entitled to one-sixth share of the total profits and if his claims were allowed he would receive appreciably more as he has already obtained the whole instead of one-sixth of the exproprietary rent.

2. Some rulings were referred to in regard to cases where a cosharer had collected more than this share of the exproprietary rent of a tenant, but those cases were different from the present case, because in this case the exproprietary tenant was not a co-sharer. In the present case the exproprietary tenant is not only a cosharer but he is the sole remaining cosharer and the sole defendant in the present case. The decree in the rent suit therefore was a decree between the present parties. Some point is raised for appellant that in that decree the defendant was sued in his capacity of a tenant and not in his capacity of a cosharer. We do not think that makes any difference. We may also note that under Section 266(4), Tenancy Act, it was only because the defendant had the capacity of a cosharer and also of an exproprietary tenant that the plaintiff alone was entitled to sue for arrears of rent in the Revenue Court. It appears to us that the plaintiff is estopped by Section 115, Evidence Act, from altering the position which he took up in the Revenue Court in regard to the profits for the years in suit in that suit, and he claimed and obtained the whole of the sir rent from the defendant. Having obtained the decree on the theory that he alone was entitled to the whole of the exproprietary rent we cannot now allow him to change the allegations that he made in that suit. We therefore consider that we must hold that the plaintiff is not entitled to any share of the remainder of the original 32 bighas sir. Accordingly we dismiss this appeal with costs.


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