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Ramjas Mal Vs. Zaharya Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1915All236; 28Ind.Cas.358
AppellantRamjas Mal
RespondentZaharya Singh
Excerpt:
u.p. land revenue act (iii of 1901), section 118 - partition--site of house belonging to one co-sharer given to another--step to get rent fixed not taken--owner of site, right of. - - the defendant has come up in second appeal to this court and contends that as the plaintiff has failed to prove that sonehra and musammat indraoti were mere tenants on whose departure the house and its site escheated to him, his claim for possession must fail. they failed to do so, and the plaintiff's suit for possession of the site by removal, of the materials of the house cannot be resisted......and the house, situate on it. the facts as found by the courts below are that sonehra, hardeo and musammat indraoti were the owners of the house in suit and co-sharers in the village. in 1870 the ancestors of sonehra, hardeo and musammat indraoti mortgaged their zemindari as also the house in suit to ram lal, the grandfather of the plaintiff-respondent. the mortgage was with possession, but the mortgagors took the house on lease from the mortgagee. in 1897 sonehra and his father, moti, sold their equity of redemption to the defendant-appellant in respect of their zemindari share, who redeemed the mortgage. in 1904 there was a partition effected through court between the co-sharers of the village under which abadi plot no. 53/1 was allotted to the plaintiff-respondent. at the time of the.....
Judgment:

Rafique, J.

1. This appeal arises out of a suit brought by the plaintiff-respondent for the recovery of possession of abadi plot No. 53/1 and the house, situate on it. The facts as found by the Courts below are that Sonehra, Hardeo and Musammat Indraoti were the owners of the house in suit and co-sharers in the village. In 1870 the ancestors of Sonehra, Hardeo and Musammat Indraoti mortgaged their zemindari as also the house in suit to Ram Lal, the grandfather of the plaintiff-respondent. The mortgage was with possession, but the mortgagors took the house on lease from the mortgagee. In 1897 Sonehra and his father, Moti, sold their equity of redemption to the defendant-appellant in respect of their zemindari share, who redeemed the mortgage. In 1904 there was a partition effected through Court between the co-sharers of the village under which abadi plot No. 53/1 was allotted to the plaintiff-respondent. At the time of the partition Sonehra and Musammat Indraoti were occupying the house in suit. They did not ask the Collector to make an order under Section 118 of the Land Revenue Act enabling them to retain possession of the house on payment of rent. Subsequently in 1909 Sonehra and Musammat Indraoti executed a sale-deed in respect of the house situate on plot No. 531 in favour of the defendant-appellant. The vendors, after selling the house, left the village. The plaintiff-respondent, after their departure finding the defendant-appellant in possession of the house in question, brought the suit out of which this appeal has arisen for the possession of the house and its site, on the allegation that he was the proprietor of the site under the partition of 1904 and of the house because Sonehra and Musammat Indraoti, whom he described as tenants, had left the village. The claim was resisted on the ground among others that Sonehra and Musammat Indraoti were not tenants in the village, but wore co-sharers who had proprietary rights in the house in suit. The learned Munsif in whoso Court the suit was filed dismissed the claim for possession, but declared the plaintiff to be the owner of the site. On appeal the learned Subordinate Judge reversed the decree of the first Court and decreed the claim of the plaintiff for actual possession of the site giving the defendant an option to remove the materials within a specified time. The defendant has come up in second appeal to this Court and contends that as the plaintiff has failed to prove that Sonehra and Musammat Indraoti were mere tenants on whose departure the house and its site escheated to him, his claim for possession must fail. The defendant admits the title of the plaintiff to the site and is willing either to pay rent for it or to give other land of equal value in exchange to the plaintiff, I think that the decree passed by the lower Appellate Court is a correct decree in view of the decision of this Court In Nandan Pat Tewari Radha Keshun Kalwar 5 Ind. Cas. 664. At the time of partition in 1904 Sonehra and Musammat Indraoti should have taken steps under Section 118 of the Land Revenue Act. They failed to do so, and the plaintiff's suit for possession of the site by removal, of the materials of the house cannot be resisted. The appeal, therefore, fails and is dismissed with costs, The defendant-appellant is allowed two months from this date to remove the materials of the house.


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