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Mukat Singh and ors. Vs. Misra Paras Ram and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1924All726; 79Ind.Cas.106
AppellantMukat Singh and ors.
RespondentMisra Paras Ram and anr.
Excerpt:
transfer of property act (17 of 1882) section 106 - landlord and tenant--reject notice--denial of landlord's title--agreement to vacate on demand--execution of decree--sale--judgment-debtor, whether can object to validity of sale in subsequent proceedings--auction-purchasers, position of. - - it was further stated that it was settled at the time that the plaintiffs would, when they would like, be entitled to have the house vacated......of possession of a certain house and a wall which they allege to have purchased at an auction-sale held in execution of a decree against mukat singh and the other defendants. the allegation of the plaintiffs was that they purchased the house on the 5th of november 1914 and got possession through court on the il2th of january 1917 and that after such possession, had been obtained the defendant took the house from them von an agreement to pay a rent of re. 1 per mensem. it was further stated that it was settled at the time that the plaintiffs would, when they would like, be entitled to have the house vacated. the defendants denied the tenancy and pleaded that they had no knowledge of the auction-sale, and that even if the defendants were proved to be the tenants of the plaintiffs,.....
Judgment:

Kanhaiya Lal, J.

1. This appeal arises out of a suit brought by the plaintiffs-respondents for the recovery of possession of a certain house and a wall which they allege to have purchased at an auction-sale held in execution of a decree against Mukat Singh and the other defendants. The allegation of the plaintiffs was that they purchased the house on the 5th of November 1914 and got possession through Court on the il2th of January 1917 and that after such possession, had been obtained the defendant took the house from them von an agreement to pay a rent of Re. 1 per mensem. It was further stated that it was settled at the time that the plaintiffs would, when they would like, be entitled to have the house vacated. The defendants denied the tenancy and pleaded that they had no knowledge of the auction-sale, and that even if the defendants were proved to be the tenants of the plaintiffs, they could not have been ejected without notice. There was a further plea that they were cultivators and that the sale, if any, was invalid.

2. The Court of first instance dismissed the claim, holding that no tenancy was proved. The lower Appellate Court, however, held that the plantiffs had purchased the house at auction on the 5th of November 1914 and got formal possession in 1917 and that the defendants had subsequently taken a lease of the house from the plaintiffs on an agreement to pay a rent of Re. 1 per mensem. On the question of notice, the latter Court observed that inasmuch as the defendants had denied the title of the plaintiffs no notice was necessary. There was no proof, however, that the title of the plaintiffs had been denied, prior to the suit; and, as held in Haidri Begam v. Nathu 17 A. 45 A.W.N. (1894) 196 : 8 Ind. Dec. (N.S.) 353 that ground cannot be sustained.

2. But it still remains to consider whether a notice was in the circumstance alleged in the plaint, at all necessary. Section 106 of the Transfer of Property Act. (No. IV of 1882) does not require the sending of such a notice where there is a contract on local usage to the contrary. The allegation in the plaint was that the defendants had agreed to vacate the house on demand. That agreement was sought to be proved by the evidence of two witnesses, Lalta Prasad and Sirnam Singh, whom the lower Appellate Court believed. Those witnesses said that the defendants had agreed to vacate the house whenever the plaintiffs wanted them to do so. One witness also said that a lease was agreed to be written out, but it is admitted that none was actually reduced to writing. There is no allegation that any term was fixed for the tenancy; and, in view of the evidence, which goes to show that the defendants had agreed to vacate the house when the plaintiffs wanted, Section 106 cannot be made applicable and the omission to give the notice cannot be regarded as fatal to the present suit.

3. It remains also to consider the other objection taken by the defendants in the Trial Court, namely, that the house in question was not liable to sale under Section 60, clause (c) of the Code of Civil Procedure. No issue was framed on that point by the Trial Court or finding recorded. There is some evidence to show that the defendants are agriculturists <3r ex-zemin-dars but it is not open to them at this stage to go behind the sale proceeding to which they were parties and set up a plea which they had omitted to raise at the time of the judgment or prior to the sale. As held in Umed v. Jas Bam 29 A. 612 : A.W.N. (1901) 193 : 4 A.L.J. 519, and Pandurang Balaji v. Krishnaji Covind 28 B. 125 : 5 Bom L.R. 799, a judgment-debtor, who might have raised objections to a sale in execution of a decree against him but who has refrained from doing so or who might have appealed against the order for sale, has no right after the sale has been carried out to prefer an objection that the property sold was not legally saleable. In Dwarkanath Pal v. Tarini San-kar Bay 34 C. 1999 : 5 C.L.J. 294 : 11 C.W.N 513, and Lata Barn v. Thakur Prasad 47 Ind.Cas. 947 : 40 A. 680 : 16 A.L.J. 691, a similar view was taken.

5. On behalf of the defendants-appellants reliance is placed on a decision in Katwari v. Sita Bam Tewari 63 Ind.Cas. 264 : 19 A.L.J/ 473 : 3 U.P.L.R. (A) 99 : 43 A. 547, but in that case an objection was taken prior to the sale and no sale had, in fact, taken place. So far as the parties to the sale and execution proceedings are concerned, a person who is a stranger to the suit is justified in believing that the Court had authority to attach and sell the property, or, to use the language of Lord Hobhouse in Malkarjtm v. Narhari 25 B. 337 at P. 347 : 5C.W.N. 10 : 2 Bom. L.R. 927 : 27 I.A. 216 : 10 M.L.J. 368 : 7 Sar. P.C.J. 739 (P.C.), that the Court had done that which by the directions of the Code it ought to do. The appeal, therefore, fails and is dismissed with costs.


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