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Md. Fazihzzaman Vs. Anwar Husain - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1932All314
AppellantMd. Fazihzzaman
RespondentAnwar Husain
Excerpt:
- - it is therefore urged that the suit must fail. strong reliance is placed on the case of ibadullah khan v. . there can therefore be no doubt that the lessee is entitled to enforce his right to obtain possession of the land leased to him so that he may enjoy its usufruct......before the expiry of that period, namely, on 6th may 1927, she executed another lease in favour of anwar husain plaintiff 2, for a further period of ten years. the former lease was to expire on 22nd july 1927 and the second lease was to take effect from 1st august 1927.2. the suit was originally filed jointly by muhammadi begam and anwar husain and it was for ejectment and mesne profits, leter on mt. muhammadi begam's name was transferred from the array of the plaintiffs to that of the defendants. the plaint however was not substantially amended. the courts below have decreed the claim for possession and that decree has been affirmed by a learned judge of this court. the claim as regards mesne profits for the period prior to the lease in favour of anwar husain has been disallowed by the.....
Judgment:

Sulaiman, Ag. C.J.

1. This is a defendant's appeal arising out of a suit for ejectment of the defendant from a house and shops. A lease had been granted by plaintiff 1 Mt. Muhammadi Begam to the defendant for a period of ten years on 23rd July 1917. Before the expiry of that period, namely, on 6th May 1927, she executed another lease in favour of Anwar Husain plaintiff 2, for a further period of ten years. The former lease was to expire on 22nd July 1927 and the second lease was to take effect from 1st August 1927.

2. The suit was originally filed jointly by Muhammadi Begam and Anwar Husain and it was for ejectment and mesne profits, Leter on Mt. Muhammadi Begam's name was transferred from the array of the plaintiffs to that of the defendants. The plaint however was not substantially amended. The Courts below have decreed the claim for possession and that decree has been affirmed by a learned Judge of this Court. The claim as regards mesne profits for the period prior to the lease in favour of Anwar Husain has been disallowed by the learned Judge.

3. The defendant has filed this appeal in Letters Patent and there is no cross-appeal on behalf of the plaintiff.

4. It is contended on behalf of the defendant that the frame of the plaint as it stands disentitles Anwar Husain from getting a decree. This is wholly a technical plea inasmuch as the parties have all along had knowledge what the dispute between them was and no substantial injustice has been done in spite of the omission to amend the plaint so as to put it in a proper form.

5. The main contention is that the plaintiff Anwar Husain is not entitled to a decree for possession against the defendant lessee. The first argument is that there was a contract for the grant of a fresh lease between Mt. Muhammadi Begam and the contesting defendant and the second lease was given to the plaintiff Anwar Husain in breach of that contract. It is therefore urged that the suit must fail. If there was any such contract it can be specifically enforced by a separate suit and if Anwar Husain had knowledge of that previous contract it can be enforced as against him also. As no registered lease was executed in favour of the contesting defendant we cannot take this circumstance into account at this stage. As a matter of fact both the Courts below have come to the conclusion that there was no completed contract in favour of th9 defendant-respondent which would bind Mt. Muhammadi Begam and that the amount of Rs. 10 which had been sent to her was not by way of earnest money, but with a view to inducing her to come to Bareilly.

6. The main ground urged in defence is that the subsequent lessee has no right to eject the previous lessee who is holding over. It is contended that his remedy is only as against the lessor for the recovery of possession and mesne profits and he alone can maintain a suit for ejectment against the previous lessee. Strong reliance is placed on the case of Ibadullah Khan v. Ram Gharan [1919] 53 I.C. 140. That was however a case where the property in dispute consisted of an agricultural tenancy and the previous tenant could lawfully have been ejected only through the Revenue Court. A suit brought by a subsequent lessee in the civil Court was held not to be maintainable. It is not necessary for us to express any opinion on that case as the facts of that case are quite different. In the present case the lease in favour of the defendant was for a fixed period of ten years and was governed by the Transfer of Property Act. Under Section 111(a) it was determined by the efflux of time limited by the lease as a period was fixed. It must be presumed that notice was by implication given at the time when the lease was executed. No notice under Section 106 was accordingly required for the termination of this lease. Section 108 provides that the lessor is bound on the lessee's request to put him in possession of the property, and further provides that the benefit of such contract shall be annexed to, and go with the lessee's interest as such, and may be enforced by every person in whom that interest for the whole or any part thereof from time to time vested.. There can therefore be no doubt that the lessee is entitled to enforce his right to obtain possession of the land leased to him so that he may enjoy its usufruct. There seems to be no reason why he should not be allowed to enforce his right against another person who is holding under his lessor, who is bound to put him in possession The defendant's lease terminated automatically. A Bench of the Madras High Court in Achayya v. Sanumantraydu [1891] 14 Mad. 269 came to the same conclusion on general grounds and independently of the express provisions of the Transfer of Property Act.

7. Of course, if there were any estoppel against the lessor arising out of circumstances which existed previous to the grant made to Anwar Husain, the plaintiff may not succeed. But nothing done by the lessor subsequent to the grant of the lease by him would disentitle him because the lessor could not be allowed to derogate from it. The mere fact that Mt. Muhammadi Begam in the course of the present suit entered into a compromise with the defendant which had been called by the lower appellate Court as collusive would not disentitle the plaintiff lessee from obtaining his decree.

8. The only other point urged was that the plaintiff has obtained a lease from Mt. Muhammadi Begam and did not himself execute a counterpart of the lease. It was urged that the lease was imperfect and could not be enforced. This contention in our opinion has no force whatever. Some doubts have been expressed as to the validity of a lease where only a counterpart has been executed by the lessee and no lease by the lessor; but it has never been suggested that the execution of a lease by the lessor does not create a valid lease in favour of the lessee. There is therefore no force in this contention.

9. The result therefore is that this appeal is dismissed with costs.


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