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Mt. Sukhia and ors. Vs. Pt. Kirpa Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1945All348
AppellantMt. Sukhia and ors.
RespondentPt. Kirpa Ram and anr.
Excerpt:
- - c' in that the learned judge did not exercise a jurisdiction not vested in him by law, nor did he fail to exercise a jurisdiction so vested, nor did he even act, in the exercise of his jurisdiction, illegally or with material irregularity. such an engagement they have failed to prove......mortgagor was admitted by the defendants and their predecessors. on appeal the learned district judge held that plaintiffs 2 and 3 were not entitled to redeem, inasmuch as they did not share in cultivation with the deceased at the time of the mortgage. when th6 matter came up before me in revision i sent down two issues:(1) what is the khata in which the property in suit is situate? are there any such plots in that khata belonging to the deceased bhaggu in respect of which the applicants shared in cultivation with their grandfather, bhaggu 1 (2) when did bhaggu die?this remand was necessary by reason of an error of law made by the learned district judge, because the material date when the plaintiffs should have shared in cultivation with their grandfather was not the time of the.....
Judgment:
ORDER

Sinha, J.

1. This is an application in revision under Section 115, Civil P. C., arising out of an application under Section 12, Agriculturists' Relief Act, for the redemption of a usufructuary mortgage granted by one Bhaggu on 17th September 1902. The property mortgaged consisted of some occupancy tenancy and was for a sum of Rs. 395. Plaintiff 1 is the daughter and plaintiffs 2 and 3 are the daughter's sons of the mortgagor. The mortgagor died some time between the years 1920 to 1922. The present suit was brought by means of an application under Section 12, Agriculturists' Relief, Act.

2. The defence in the main was that plaintiff 1 was no heir under Act 2 of 1901 which must govern the rights of the parties, and plaintiffs 2 and 3 had no title, inasmuch as they did not share in cultivation with the deceased mortgagor at the time of his death. The learned Assistant Collector granted an unconditional redemption on the finding that the entire mortgage money had been paid up. He held that the plaintiffs' character as occupancy tenants of several other plots, not the plots in dispute, as the heirs of the deceased mortgagor was admitted by the defendants and their predecessors. On appeal the learned District Judge held that plaintiffs 2 and 3 were not entitled to redeem, inasmuch as they did not share in cultivation with the deceased at the time of the mortgage. When th6 matter came up before me in revision I sent down two issues:

(1) What is the khata in which the property in suit is situate? Are there any such plots in that khata belonging to the deceased Bhaggu in respect of which the applicants shared in cultivation with their grandfather, Bhaggu 1 (2) When did Bhaggu die?

This remand was necessary by reason of an error of law made by the learned District Judge, because the material date when the plaintiffs should have shared in cultivation with their grandfather was not the time of the mortgage but the date of his death. The learned District Judge has submitted the following findings:

(1) The khatas in which the property in suit is situated are Nos. 148, 43, 155, 257, 315 and 356. There are no plots in these khatas belonging to the deceased Bhaggu in respect of which the applicants could have shared in cultivation with him. (2) Bhaggu died about 20 years ago.

3. It has been contended before me that the findings are not enough to dispose of the claim. This may be so but I do not think the learned District Judge is at all to blame for the form in which he has returned his findings. The findings are in answer to the issues sent down by me. A preliminary objection has been taken by the learned Counsel for the opposite party that the application in revision does not come within the four corners of Section 115, Civil P. C' in that the learned Judge did not exercise a jurisdiction not vested in him by law, nor did he fail to exercise a jurisdiction so vested, nor did he even act, in the exercise of his jurisdiction, illegally or with material irregularity. To my mind the judgment of the learned Judge betrays a lack of appreciation of the true legal position. I am, therefore, entitled to come to the conclusion that he has acted at least with material irregularity. Or, to put it in another way, on the facts found and on the law as it is, as I shall presently show, the plaintiffs were entitled to a decree. The plaintiffs have, as a result of a misapplication of the law, been denied justice. This will, to my mind, amount to a material irregularity. I am fortified in my view by the principle laid down in Abdul Noor v. Brij Mohan Saran : AIR1938All153 .

4. It has been contended by the learned Counsel for the applicants that there are materials on the record which would establish that in 1289 F. all the plots in dispute and some other plots were in one khata and that some time after the mortgage in question those plots were split up into eight khatas and that Bhaggu was a tenant of all the plots in all the eight khatas. Of the plots in suit the mortgagees were in possession, of the remaining plots Bhaggu himself remained in possession. Dr. Sen challenges the accuracy of this statement of fact and contends that there is nothing in the judgments of the Courts below to establish the same. I have gone through the evidence and I find that there are papers on the record which support the above statement. I shall, therefore, proceed upon the assumption that originally there was a single khata up to the year 1289 F. It was subsequently split up into eight khatas with the result that six khatas went to the mortgagee and the remaining two khatas remained in possession of Bhaggu. Section 22, Agra Tenancy Act, Act 2 of 1901, gives no right to the daughter. It, however, provides that the daughter's son or a collateral shall not be entitled to inherit unless he shared with the tenant the cultivation of the holding at the time of his death. The important word is the word 'holding.' Holding has been defined by Section 3, Clause (9) as ' a parcel or parcels of land held under one tenure or one lease or engagement.' That the essence of the definition of a holding is one engagement is clear rom Mahbub Ali Khan v. Chiddan : AIR1926All519 . Mukerji J. whose judgment was affirmed in Letters Patent, observes at p. 601:

It appears to me that it must be taken, in the absence of any evidence to the contrary, that the whole of the land on which the grove stood was held on one particular engagement. Unless an agreement to the contrary is proved, a portion of the land held under' one engagement cannot be taken away so long as the remaining land cannot be taken away. It is entirely a question of contract.

On the materials on the record it is abundantly clear that all the khatas at one time constituted a single khata and that single khata constituted the holding. It, therefore, lay upon the defendants to prove that the subsequent splitting up was under an engagement to the contrary. Such an engagement they have failed to prove. I, therefore, think that plaintiffs 2 and 3 are entitled to redeem. The learned Assistant Collector held that the entire mortgage amount had been discharged. This was accepted by the learned District Judge. I, therefore, allow this application in revision, set aside the order of the Court below and restore that of the Court of first instance with costs throughout.


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