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Jai Ram Vs. Gulzari Mal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1916All157; 35Ind.Cas.612
AppellantJai Ram
RespondentGulzari Mal and anr.
Excerpt:
civil procedure code (act v of 1908), section 11 - res judicata--decision, of revenue court--plaintiff not entitled to sue as co-sharer--suit by plaintiff as lambardar, maintainability of--co-sharer, cultivating, if tenant--question, decision of. - - the next point taken is that the civil court, on the 3rd of november 1906, held that the plaintiff's title as a purchaser was not good. it appears that the plaintiff gulzari mai acquired property in the first place under a sale-deed of the 18th january 1906 and in the second place at an auction sale of the 24th of november 1906. in that case the plaintiff's title under the auction sale was held to be good......which on may 2nd 1914 held that although the plaintiffs as co sharers could not maintain the suit, gulzari mai as lambardat was entitled to maintain it. this decision is reported as gulzari lal v. jai ram 24 ind. cas. 178 : 12 a.l.j. 606 : 36 a. 441. the case was then remanded to the lower appellate court for the determination of the remaining issues. these have been disposed of by mr. tabor in his judgment dated the 2nd of december 1914. mr. tabor decreed the suit. the defendant has preferred this appeal.2. the two remaining points have been very ably argued by mr. pearey lal banerji, the first of these being whether the present suit is barred by the principle of res judicata. reliance was placed on the judgment of mr. sita ram kher, dated the 17th december 1907, holding that the.....
Judgment:

Sunder Lal, J.

1. This is an appeal arising out of a suit to eject the defendant under Section 58 (a) of the Agra Tenancy Act of 1901. The plaintiffs are Gulzari Mal who is lambardar and his son Lachman Chand. The defendant Jai Ram is said to be anon-occupancy-tenant of 11 bighas odd. He also appears to have purchased an area of 5 bighas 17 biswas comprising several plots in the village. The suit was resisted on various grounds. In the first place it was urged that the plaintiffs as co-sharers could not alone maintain the suit for ejectment. It was further urged that the suit for ejectment was barred by reason of a decision of an Assistant Collector, Mr. Sita Ram Kher, dated the 17th December 1907, and that it was also barred by reason of a Civil Court's decision dated the 3rd of November 1906. The last plea in defence was that the defendant himself was a co-sharer, that he was not a tenant and that the suit against him for ejectment by brother co-sharers was not maintainable. The case came before Mr. Darling, Assistant Collector of the first class, who on the 14th of September 1911 decreed the plaintiffs' suit. The defendant first of all appealed to the Commissioner, that officer returned the memorandum of appeal, which was thereupon filed in the Court of the District Judge. The case then came up for hearing before Mr. Burkitt, who on the 2nd of October 1912 dismissed, the plaintiffs' suit. The plaintiffs, thereupon, appealed to this Court and on the 5th of July 1913 Mr. Justice Rafique dismissed the appeal. His decision is reported as Gulzari Mal v. Jai Ram 21 Ind. Cas. 88 : 11 A.L.J. 742. The plaintiffs then preferred an appeal under Section 15 of the Letters Patent and the case was ultimately referred to a Full Bench, which on May 2nd 1914 held that although the plaintiffs as co sharers could not maintain the suit, Gulzari Mai as lambardat was entitled to maintain it. This decision is reported as Gulzari Lal v. Jai Ram 24 Ind. Cas. 178 : 12 A.L.J. 606 : 36 A. 441. The case was then remanded to the lower Appellate Court for the determination of the remaining issues. These have been disposed of by Mr. Tabor in his judgment dated the 2nd of December 1914. Mr. Tabor decreed the suit. The defendant has preferred this appeal.

2. The two remaining points have been very ably argued by Mr. Pearey Lal Banerji, the first of these being whether the present suit is barred by the principle of res judicata. Reliance was placed on the judgment of Mr. Sita Ram Kher, dated the 17th December 1907, holding that the plaintiffs as co-sharers could not maintain the suit for ejectment. This view was also taken by this Court. But a further point now before the Court is whether as lambardar Gulzari Mai can maintain the suit. The Full Bench in this case held that Gulzari Mai as lambardar was entitled to maintain the suit. The judgment of Mr. Sita Ram Kher deciding that the plaintiff as co-sharer was not entitled to maintain a suit for ejectment cannot operate as res judicata with reference to the question whether the plaintiff as a lambardar is entitled to maintain such a suit. The next point taken is that the Civil Court, on the 3rd of November 1906, held that the plaintiff's title as a purchaser was not good. It appears that the plaintiff Gulzari Mai acquired property in the first place under a sale-deed of the 18th January 1906 and in the second place at an auction sale of the 24th of November 1906. In that case the plaintiff's title under the auction sale was held to be good. The present suit has been brought by him in the capacity of a lambardar. Being a co-sharer at any rate of a portion of the property in suit, he was entitled to become a lambardar and as such lambardar to maintain a suit for ejectment. I may mention in this connection that in paragraph (1) of the written statement the defendant admits the correctness of the allegation made in paragraph (1) of the plaint to the extent that the plaintiffs are co-sharers of this very khata. That being so, the plaintiff's suit is not barred by the rule of res judicata. The second point raised by Mr. Pearey Lal Banerji is that the defendant himself is a co-sharer and that he cannot be dealt with as a tenant although he holds land in excess of 5 bighas 17 biswas, his own interest in the land. The question whether a co-sharer cultivating lands in a village in a portion of which he is co-owner is invariably to be regarded as a co-sharer accountable for the rent to the body of co sharers at the time of the distribution of profits or as a tenant on behalf of the general body of co-sharers, is not one admitting of an invariable answer. The person may be a tenant on behalf of the general body of co-sharers. As an illustration I may refer to the case of Abul Hasan Khan v. Bhura A.W.N. (1906) 226 : 3 A.L.J. 763 : 28 A. 763 where a Bench of this Court held that by reason of the purchase of a share in the village the person who has been a tenant does not cease to be s. ch. In other words, a man may be a co-sharer as also a tenant of a village at the same time. On the other hand, as Mr. Pearey Lai Banerji has argued, a co-sharer may cultivate land not as a tenant but as a co-sharer, in which case he has to account for the rent of the land in his cultivation. As an illustration of this 1 may refer to the case of Indar Lal v. Deojit 4 A.L.J. 1 : A.W.N. (1907) 26. Each case depends upon its own circumstances. In this particular case, we find that there are four co-sharers in the village. The first of these is Harjas who holds an ancestral share in the village. The plaintiffs (iulzari Mai and his son Lachman Chand are co-sharers, who hold a portion of the village land by virtue of the two purchases. I have already mentioned, and the fourth co-sharer is the defendant Jai Ram who is the purchaser of the specific area of 5 bighas 17 biswas. The learned Judge has found that the plots in dispute which the defendant cultivated did not form part and parcel of the specific area of 5 bighas 17 biswas owned by him, nor did they form part and parcel of the land owned by Harjas; but that they are situated in the part owned by the plaintiff. This, I regard as a finding of fact. Mr. Pearey Lal Banerji has argued that it is not a correct finding as it has been arrived at by a process of elimination whereby Harjas and the defendant are excluded from the ownership of the plots in dispute and the plaintiffs alone left as owners. I think for the purpose of this case it is sufficient to say that the defendant is not the owner of, nor has he any share in, the plots in suit. His specific area of 5 bighas 17 bisu-as is quite distinct from the area now in suit. Upon the finding, therefore, he could have held the lands only as a tenant-at-.will on behalf of other co-sharers. The result is that the appeal fails and I dismiss it with costs.


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