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Padarath Pathak Vs. Jagdeo Pathak and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All844
AppellantPadarath Pathak
RespondentJagdeo Pathak and anr.
Cases ReferredKallu v. Sital
Excerpt:
- - this finding evidently proceeds upon an error of law and is clearly opposed to the decision of the privy council in bala baksh v. if the defendants remained in possession adversely to the plaintiff from the date of the execution of the second lease right up to the date of the institution of the suit, the time was not long enough to defeat the plaintiff's claim on the ground of limitation, and the lower appellate court was clearly wrong in holding that the plaintiff's claim was time barred......was acquired from the raja of jaunpur about the year 1908 when the plaintiff was a member of a joint family with the defendants and was indeed the karta of the family, that the lease was taken for the benefit of the joint family and the profits of the lease-hold property were always thrown into the common chest, that notwithstanding separation the defendants remained in possession of portions of the property in dispute in this way, that plot 1021/8 was allotted to the share of the plaintiff and the other plots fell to the share of the defendants, that the defendants contributed towards the costs of the ejectment suit against the plaintiff, and that the compromise was made and the second lease obtained not for the benefit of the_ plaintiff alone but of the parties to the present.....
Judgment:

Sen, J.

1. This is the plaintiff's appeal in a suit for possession of plots 1021/7, 8, 9 and 10, and for Rs. 20 as mesne profits for 1329 and 1330 Faslis. Plaintiff and defendants are brothers. According to the plaintiff he separated from the family 30 or 35 years ago. After separation he obtained a lease from the Raja of Jaunpur of the land in dispute, and remained in exclusive possession of the land in suit. Some time towards the close of 1921, or the beginning of 1922, the Raja of Jaunpur sued the plaintiff for ejectment. The defendants were no parties to this suit. A compromise was arrived at on the 31st January 1922, and a fresh lease was granted to the plaintiff for a term of seven years from 1329 to 1335 Faslis on an enhanced rent. In July 1922, the defendants took forcible possession of the land and sowed paddy crop. Hence the suit for possession and damages

2. The defendants deny that the plaintiff separate from the family 30 or 35 years ago. They allege that the separation took place about the year 1914 or 1915, that the original lease was acquired from the Raja of Jaunpur about the year 1908 when the plaintiff was a member of a joint family with the defendants and was indeed the karta of the family, that the lease was taken for the benefit of the joint family and the profits of the lease-hold property were always thrown into the common chest, that notwithstanding separation the defendants remained in possession of portions of the property in dispute in this way, that plot 1021/8 was allotted to the share of the plaintiff and the other plots fell to the share of the defendants, that the defendants contributed towards the costs of the ejectment suit against the plaintiff, and that the compromise was made and the second lease obtained not for the benefit of the_ plaintiff alone but of the parties to the present claim, that the defendants were the principal tenants of plots 1021/7, 8, 9 and 10, that they were in adverse possession of the said plots for more than 12 years and therefore the plaintiff's claim was time barred.

3. The Munsif decreed the plaintiff's suit. He found that the family was not joint either at the time of the acquisition of the first or the second lease. It is not clear what the exact findings are on questions of fact arising from the pleadings. Possibly he intended to find that the defendants were not in adverse possession. Possibly he intended to base the judgment upon the fact that the defendants having, had no community of interest with the plaintiff at the time of the acquisition of the two leases, these could not enure for the benefit of the defendants. The judgment of the Munsif is rather confused and the findings have not been set forth with clearness and precision. The lower appellate Court reversed the decision of the Munsif and dismissed the plaintiff's suit.

4. The facts which can be gathered from the judgments of the two Courts are that Sadanand Pathak, the father of the parties to the suit, had seven sons, of whom there sons separated about 25 years ago, but four of them remained in commensality. These four sons were Padarath, plaintiff, Salig and Jagardeo, defendants, and a fourth man called Kashi, who was no party to the suit. This fact was admitted by the defendant Salig vide the judgment of the Munsif.

5. There can be no doubt that the plaintiff's story, that he separated from his brother 30 or 35 years ago was not true. The partition took place 25 years back when three of the brothers separated. There is no presumption that when one coparcener separated from the others the latter remain united. There is no presumption, therefore, that the parties to the suit still constituted members of a joint family along with Kashi after the separation of the three brothers. The defendants have neither alleged nor proved any reunion.

6. The lower appellate Court found that the separation took place between the parties some ten years ago, and that before that they were joint and formed a joint Hindu family. This finding evidently proceeds upon an error of law and is clearly opposed to the decision of the Privy Council in Bala Baksh v. Rukhmabai [1903] 30 Cal. 725. The learned Judge next finds that the plaintiff was the leading member of the joint family, and, therefore, the first lease was obtained in his name alone, but was intended to be for the benefit of the joint family. The land formed part of a tank. It was re-claimed by all the members of the family by their labour and joint effort, and that all the members of the family remained in possession of the property and continued in possession even after separation. The zamindar brought the suit for ejectment against the plaintiff alone, because his name figured as lessee of the land. The defendants remained in possession of the property both before and after separation. After separation plaintiff's possession was restricted to plot 1021/8. The defendants remained in possession of the three plots for more than 12 years, and the plaintiff's claim is, therefore, time barred. The compromise cannot affect the rights of the defendants.

7. If the finding of the lower appellate Court, that the family separated some ten years ago, be accepted, it would follow that at the time of the first lease the family was joint and the lease was acquired during the subsistence of the joint family. It does not follow, as a matter of law, that the lease obtained by the karta of the joint family is really a lease for all the members of the joint family. It would be a question of some importance: Did the zamindar accept a designated person for his tenant, or did he accept the joint family represented by the said person as his tenant? Neither of the Courts below has approached the matter from this point of view. This omission however, does not seriously affect the trial of the case. The first lease was for seven years and it spent its force upon the expiry of the fixed period. The zamindar instituted the suit for ejectment and in the course of the said suit a compromise was made with the plaintiff alone at a time when the family was admittedly separate and a new lease was granted to the plaintiff at an enhanced rent. This was in the year 1922. The zamindar did not and could not execute a lease in favour of Padarath, plaintiff, for the benefit of a joint family, because there was no joint family on the date of the compromise and the execution of the second lease.

8. The second, lease was granted in 1922. The present suit was instituted on the 5th November 1923. The rights of the lessee under the first lease expired as soon as the term of the said lease had run out. If the defendants remained in possession adversely to the plaintiff from the date of the execution of the second lease right up to the date of the institution of the suit, the time was not long enough to defeat the plaintiff's claim on the ground of limitation, and the lower appellate Court was clearly wrong in holding that the plaintiff's claim was time barred.

9. It can never be seriously disputed that a Hindu joint family, as such, may be the tenant of a holding in its corporate capacity. But where the zamindar grants the lease' of a land to a persona designata, who is also the karta of a joint Hindu family, and the latter throws the profits derived from the leasehold into the common chest, the tenancy does not become the assets of the joint family: Kallu v. Sital [1918] 40 All. 314. This is because a tenancy is a creature of contract and it was not open to a lessee by his acts to impose upon the zamindar the other members of his family as co-tenants of the leasehold property.

10. In the present case on the date of the execution of the second lease, Padarath Pathak, plaintiff, was not joint with defendants 1 and 2. The lease was taken in the name of plaintiff alone. It has not been proved that the zamindar ever recognized the defendants as co-tenants with the plaintiff. It follows that the defendants are not entitled to claim the benefit of the lease. If the plaintiff allowed the defendants to remain in possession in specific portions of the holding, the defendants did not become the subtenants of the plaintiff. There was no agreement to pay rent, and no sub-tenancy has either been pleaded or proved. The possession, therefore, of the defendants was by leave and licence of the plaintiff. The plaintiff, therefore, was not entitled to claim mesne profits from the defendants.

11. As the plaintiff came to Court with a number of false allegations, as a mark of censure, I would deprive him of his costs throughout. Holding, therefore, that the plaintiff was entitled to the holding comprising the plots in suit, I decree the plaintiff's claim for possession of plots 1021/7, 9 and 10. I dismiss his claim as to plot 1021/8, it having been found by the lower appellate Court that the plaintiff is already in possession of this plot. I dismiss plaintiff's claim for mesne profits. The parties are to bear their costs throughout, and the decrees of the Court below be modified to the extent indicated above.


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