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Raghavendra NaraIn Shah Vs. Moti Lal Gupta and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1276 of 1969
Judge
Reported inAIR1982All304
ActsSpecific Relief Act, 1963 - Sections 38; Transfer of Property Act, 1882 - Sections 53A, 105 and 107; Limitation Act, 1963 - Schedule - Article 64
AppellantRaghavendra NaraIn Shah
RespondentMoti Lal Gupta and ors.
Appellant AdvocateG.P. Bhargava and ;A.N. Bhargava, Advs.
Respondent AdvocateB.M. Singh, Adv.
DispositionAppeal dismissed
Cases ReferredSee Nair Service Society Ltd. v. K. C. Alexander
Excerpt:
.....on land - as transfer valid - injunction can be granted against defendant - plaintiff entitled to protect title under section 53a. - - at best, there was a mere transfer of possession but the plaintiff having lost possession, section 53a of the transfer of property act could not be invoked at all. it may be that their terms satisfied the definition of a lease contained in section 105 of the t. parjawat is a well known tenure recognised by custom. 8. the so-called deeds of lease clearly speaks of the grant of the land of the so-called lessees as parjawatdars. act, for as observedin achayya's case (supra) 'the utility of the section or the rights conferred thereunder should not be made to depend on the maneuvering for positions in a court of law, otherwise a powerful..........and their enforcement as such. the so-called leases were, on their true interpretation, grants of land permanently, on parjawat tenure. parjawat is a well known tenure recognised by custom. it means grant of land by the zamindar to his raiyats or persons desirous of living in a village of which he was the proprietor, on payment of somegrant, rent or other consideration. it was technically not a lease, but a grant of land for building purposes whether on payment of rent or some other consideration. it was heritable and transferable and was on the same footing as a licence. coupled with a grant or a licence for building purposes where the licensee acting upon the licence puts up a permanent structure on the land.8. the so-called deeds of lease clearly speaks of the grant of the land of.....
Judgment:

Deoki Nandan, J.

1. This is an appeal by the first defendant from a decree of injunction restraining the defendants from interfering with the use and possession of the land in suit by the plaintiff as a permanent lessee thereof. The two plots of land Nos. 3 and 4 were granted on Parjawat tenure to Bankim Chandra Ghosh and Nagendra Nath Paul under two separate registered deeds dated the 19th July, 1934 and 17th August, 1934 respectively, by one Krishna Mohan Shah. The plaintiff claims to be a transferee of the Parjawat rights in the two plots of land from the heirs of Bankim Chandra Ghosh and Narendra Nath Paul under two separate deeds of sale dated the 14th July, 1958. The plaintiff has described the instruments dated the 19th July, 1934 and 17th August, 1934 executed by Krishna Mohan Shah in favour of Bankim, Chandra Ghosh and Narendra Nath Paul as permanent leases, and the status acquired by them thereunder to be that of a permanent lessee. The defendants Nos. 1and 3 were brothers and the second defendant is the first defendant's wife. The defendants Nos. 1 and 3 had filed separate written statement, but only defendant No. 1 appears to have contested the suit.

2. The plaintiff's case was that the defendants had unlawfully obstructed him in raising construction on the land after he had purchased the same in July, 1958, the date of the accrual of the cause of action given by the plaintiff being the 4th December, 1958 and the suit having been filed on the 6th December, 1958. The defence was that the leases were invalid, inasmuch as Krishna Mohan Shah all alone had no right to execute the leases, and that the suit was barred by limitation, inasmuch as the plaintiff or his predecessor-in-interest before him never had any possession over the land.

3. It appears that the plaintiff had, on an application made on the 13th January, 1960 amended the plaint by claiming in the alternative the relief of possession if he was found to be out of possession.

4. The following were the issues on which the parties went to trial.

'1. Whether plaintiff is the permanent lessee of the plots in suit?'

2. To what relief if any is the plaintiff entitled?

3. Is the suit barred by Articles 142 and 144 of the Limitation Act?'

5. The trial court found that Krishna Mohan Shah had sold his rights in the land to Balbhadra Das and in the year 1956, the defendants Nos. 1 and 2 purchased the same from Balbhadra Das vide Exts. 8 and 9 and held that the plots of land belonged exclusively to Krishna Mohan Shah and he alone was, as such entitled to transfer the same. But the trial court also found that the two leases in favour of Bankim Chandra Ghosh and Narendra Nath Paul, under which the plaintiff claimed title to the land, were signed only by the lessor and not by the lessees and were, therefore, invalid and ineffective in law and the plaintiff had no title to the land. On issue No. 3, the finding of the trial court was that although the plaintiff admitted in his statement on oath (made on 9th February, 1961) that he was not in possession over the land for the last twoyears, that did not mean that the plaintiff or his predecessor-in-interest were not in possession before the said period of two years and that, therefore, the suit could not be said to be barred by Articles 142 and 144 of the Limitation Act. However, in view of its finding on issue No. 1, the trial court dismissed the suit with costs. On appeal by the plaintiff in the District Court, he was allowed to amend the plaint, whereby the plea of having perfected title over the land by adverse possession 'either as owner or as lessees' was added. The lower appellate court confirmed the trial court's finding that Krishna Mohan Shah was the sole proprietor of the land and had the right to transfer it himself alone. Further, according to the lower appellate court, the first defendant had no right to contest the suit on the ground that the leases in favour of the plaintiff are defective and that he could 'challenge the suit on the ground of possession only'. The lower appellate court found that the transferees had continued in possession and had continued to pay rent to Krishna Mohan Shah and after him to his transferee Balbhadras Das. Further, according to the lower appellate court, the second defendant could not challenge the plaintiff's right to remain in possession as she was a transferee from Balbhadra Das and the defendants Nos. 1 and 3 had no concern with the land in suit and could not, therefore, challenge the plaintiff's right to remain in possession. The lower appellate court also held that the plaintiff was entitled to protect his possession under Section 53A of the Transfer of Property Act and on these findings it decreed the suit for injunction restraining the defendants from interfering with the use and possession of the plaintiff.

6. Mr. G. P. Bhargava for the defendant-appellant urged that Section 53A of the T. P. Act. had no application, as the plaintiff had even admitted that he was not in possession and the deeds relied on being not signed by the lessees there could be no lease. It was not a case where the deed of lease wag unregistered but a case where there was no agreement and no transfer. At best, there was a mere transfer of possession but the plaintiff having lost possession, Section 53A of the Transfer of Property Act could not be invoked at all. The contention was further buttressed by urging that Section 53A of the T. P. Act was not pleaded at ail and though it might be a weapon of defence when the defendant is in possession, it cannot be used as a weapon of offence by a plaintiff who has lost possession.

7. I have heard learned counsel for the parties, I do feel that the reliance placed by the lower appellate court on Section 53A of the T. P. Act was, on the facts and in the circumstances of the case, controversial I have also read the deeds executed by Krishna Mohan Shah in favour of Bankim Chandra Ghosh of which a Hindi transliteration was passed on to me and was seen by me in the absence of the certified copy thereof which must have formed part of the 'C' file as the 'C' file of the lower court record was not available at the hearing of the appeal, probably because it has been weeded out. In my opinion, the view of the trial court that the two deeds of July, 1934 were void for not being signed by the lessees is not correct in law. These deeds have been referred to throughout as deeds of permanent lease. It may be that their terms satisfied the definition of a lease contained in Section 105 of the T. P. Act. They were duly registered, Nonetheless they could not be said to have amounted to a lease for under Section 107 of the T. P. Act 'a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument' and 'where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee.' Having been executed only by the zamindar or the lessor and not by the lessee the transaction could not amount to a lease. But that is not to say that the transaction was invalid in law and conferred no title on the predecessor-in-interest of the plaintiff. The instruments were duly registered. There was, therefore, no difficulty in looking into their terms and their enforcement as such. The so-called leases were, on their true interpretation, grants of land permanently, on Parjawat tenure. Parjawat is a well known tenure recognised by custom. It means grant of land by the zamindar to his Raiyats or persons desirous of living in a village of which he was the proprietor, on payment of somegrant, rent or other consideration. It was technically not a lease, but a grant of land for building purposes whether on payment of rent or some other consideration. It was heritable and transferable and was on the same footing as a licence. coupled with a grant or a licence for building purposes where the licensee acting upon the licence puts up a permanent structure on the land.

8. The so-called deeds of lease clearly speaks of the grant of the land of the so-called lessees as Parjawatdars. It would in this context, be useful to read with the relevant terms of the deed in favour of Bankim Chandra Ghosh.

'Chunnki arazi Hasb tafseel zail ander zaminari hamare vage hai jiska bando-bast Patta parjauti Barah rupiya salana ke baad paane 50 rupiya nazrana ke bahaq......kaar diya.

(1) Yeh Ki pattadar arazi mazkur per qabiz rahkar bahaisival parjautdar ke maken pukhta va kham tameer qabiz rahe lekin Deosthan va masjid vaghairah nahi banayenge.

(2) Yah Ki pattadar va warisan va gayam moqaman pattadar bila ujr zarparjaut mazkur saal ba saal hum zamindar va warisan va gayam moqaman hamare ko barabar ada kiya karen basurat lakedari zarparjaut kisi saal ke hum qabiz mohal ko akhtiyar hai ki kul parjaut va charajoi adalat mai kharch va khesare ke asud dar ek rupiya saikra mahwar pattadar va qayam moqaman pattadar ke zar wa jayedad mankula va ghair mankula se vasul kar liya karunga.

(3) Yah Ki pattadar va warisan va qayam moqaman pattadar ke akhtiyar hai ki makan parjauti ko har aqsam ka intaqal karen.........Iswaste yah pattaparjauti ke likh diya ki waqt par kam aye wa sanad rahe......12 rupiya salanaparjaut arazi parjoti maliyat 85 rupaya ki hai...........................'

9. There could be no doubt that it was a grant of land by way of parjawat. The grantor had executed a deed and it was duly registered. The grant was permanent, heritable and transferable. The transfer being valid, it could not be said that the plaintiff did not have title to the land. The plaintiff could, therefore, obviously sue for the relief of injunction, if he was in possession over the land on the date of suit, but, in his statement on oath made on the 9th Feb., 1961, the plaintiff said in reply to the first question put to him in the cross-examination that he was not in possession, for two years past. The suit was filed on the 6th Dec., 1958 and the plaintiff had been allowed to amend the plaint by the court's order dated the 11th Feb., 1960 by adding the relief of possession in case it was found that he was not in possession. It appears from the findings recorded by the two courts below that the plaintiff was in possession on the date of suit, but was dispossessed during the pendency of the suit The possession could thus be restored to the plaintiff even if he had not claimed the relief for possession, which he had in the alternative. It may also be observed that even if there was any defect in the plaintiff's title, he could claim possession on being dispossessed on the basis of past possession, his own and the possession of his predecessor-in-interest even in case he had been dispossessed before the institution of the suit and in case he was in possession when he brought the suit, he could surely, be granted the injunction claimed against every one except the true owner, in case there was any defect in his title. The defendant-appellant, who alone had contested the suit, had no title to the land.

10. In the view, that I have taken it is not necessary to refer to the point raised by the learned counsel for the appellant against the finding of the lower appellate court that the plaintiff was not entitled to the benefit of Section 53A of the T. P. Act, inasmuch as that provision can be used only as a weapon of defence and not as a weapon of offence. I may, however, refer in this context to the decision of a Bench of the Andhra Pradesh High Court consisting of Subba Rao, C. J. and Vishwanatha Sastri, J. in Achayya v. Venkata Subba Rao (AIR 1957 Andh Pra 854) and the two decisions of our Court relied on therein, namely, Ram Chander v. Maharaj Kunwar : AIR1939All611 and Ewaz Ali v. Firdaus Jahan (AIR 1944 Oudh 212). Even in the plaintiff had been forcibly dispossessed before the date of the suit and the true nature of the deed under which he claimed was a permanent lease which did not come into existence because of want of execution by the lessee, the plaintiff, under the present case could still be said to be defending his possession as held in Ram Chander v. Maharai Kunwar : AIR1939All611 (supra) and could avail of Section 53A of the T. P. Act, for as observedin Achayya's case (supra) 'The utility of the section or the rights conferred thereunder should not be made to depend on the maneuvering for positions in a Court of law, otherwise a powerful transferor can always defeat the salutary provisions of the section by dispossessing the transferee by force and compelling him to go to a Court as plaintiff.' The same result is arrived at when it is said that the plaintiff could base his claim on past possession and not title. It is not necessary that when, a plaintiff bases his claim on past possession only and not on title he must bring a suit under the summary procedure prescribed by Section 6 of the Specific Relief Act, 1963 within six months from the date of his dispossession He may, if he so likes, bring a regular suit, and may, if he does so, avail of the twelve years period of limitation for such a suit prescribed by Article 64 of the Limitation Act, 1963. See Nair Service Society Ltd. v. K. C. Alexander : [1968]3SCR163 .

11. In the result, the appeal fails and is dismissed with costs. The decree under appeal is, however, modified. Instead of a decree merely of permanent injunction restraining the defendants from interfering with the use and possession of the land in suit by the plaintiff, the suit is decreed for recovery of possession over the land in suit as described at the foot of the plaint. The plaintiff shall be entitled to his costs throughout against the defendant-appellants.


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