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The Collector of Benares in Charge of the Court of Wards and anr. Vs. Shiam Das and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Judge
Reported inAIR1915All29(2); 28Ind.Cas.302
AppellantThe Collector of Benares in Charge of the Court of Wards and anr.
RespondentShiam Das and ors.
Excerpt:
agra tenancy act (ii of 1901), section 79 - person in constructive possession of holding, dispossession of--remedy. - - the subordinate judge was of opinion that this was a suit by tenants, who bad been ejected otherwise than in accordance with the provisions of the tenancy act, against their land-holders for recovery of possession of a holding within the meaning of section 79 of the tenancy act......themselves fixed-rate tenants of the land. the subordinate judge was of opinion that this was a suit by tenants, who bad been ejected otherwise than in accordance with the provisions of the tenancy act, against their land-holders for recovery of possession of a holding within the meaning of section 79 of the tenancy act. from the facts stated above it appears that the plaintiffs have never in fact held possession of the land in suit. it has been held by this court in several cases that a person who has been constructively in possession of a holding may be regarded as having been ejected within the meaning of section 79 of the tenancy act and, therefore, must sue under that section, if he wishes to recover possession of the holding. we need not review the rulings cited to us, for it.....
Judgment:

1. This is an appeal against an order of the Subordinate Judge of Jaunpur, directing that the plaint be returned to the plaintiff for presentation to the proper Court. The Subordinate Judge was of opinion that the suit as brought was cognizable only by the Revenue Court. The only facts which need to be stated for our present purpose are that in 1869 the ancestors of some of the defendants made a simple mortgage of the property in favour of the ancestor of Rai Sheo Prasad and Rai Shambhu Prasad, who are represented in the present case by the Collector of Benares as Manager of the Court of Wards. A decree nisi for sale was obtained on the mortgage in February 1901. An order absolute for sale was passed in April 1904. The property was put up for sale in March 1907, when it was purchased by Sheo Prasad and Shambhu Prasad, and the sale was confirmed in May 1907. In the plaint it is slated that the plaintiffs endeavoured to obtain possession of the property in October 1907 but were resisted by the defendants. The cause of action is said to have arisen on October 3rd, 1907. The original mortgagors of the property were fixed-rate tenants. The principal defendants to the suit are the zemindar of the land. On March 21st, 1904, they obtained a decree for arrears of rent against the fixed-rate tenants and on May 14th, 1904, they obtained an order for their ejectment and in due course ejected them and took possession of the land. The plaintiffs in the present case claimed to have acquired the rights of the fixed-rate tenants and so to have become themselves fixed-rate tenants of the land. The Subordinate Judge was of opinion that this was a suit by tenants, who bad been ejected otherwise than in accordance with the provisions of the Tenancy Act, against their land-holders for recovery of possession of a holding within the meaning of Section 79 of the Tenancy Act. From the facts stated above it appears that the plaintiffs have never in fact held possession of the land in suit. It has been held by this Court in several cases that a person who has been constructively in possession of a holding may be regarded as having been ejected within the meaning of Section 79 of the Tenancy Act and, therefore, must sue under that section, if he wishes to recover possession of the holding. We need not review the rulings cited to us, for it seems to us quite dear that in the present case it is impossible to hold that the plaintiffs have ever been even in constructive possession of the holding. The persons whose rights they claim to have acquired were ejected by the landlords in May 1904. The plaintiffs did not purchase the property till March 1907 and they do not profess to have gone anywhere near the property till October 1907. As the plaintiffs do not assert that they have ever actually held possession of the land and it is impossible to hold that they have ever been even constructively in possession of the land, we cannot bold that they have been ejected within the meaning of Section 79. We express no opinion whatever on the merits of the case, but we are of opinion that the suit was maintainable in the Civil Court and that the order of the Subordinate Judge cannot he maintained. We allow tin's appeal, set aside the order of the Subordinate Judge and remand the case to the Subordinate Judge for trial according to law. Costs here and hitherto will be costs in the cause and will include in this Court fees on the higher scale.


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