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Lachman Das and anr. Vs. Mulchand and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All411; 71Ind.Cas.441
AppellantLachman Das and anr.
RespondentMulchand and anr.
Cases ReferredRam Gopal v. Piari Lal
Excerpt:
..............claim. he also held that the second sale made during the pendency of the suit did not affect the claim. the defendants come here in second appeal and their first contention is, that the plaintiff's claim, based on the tenancy of the defendants, having failed the suit should have been dismissed and reliance has been placed on the case of shivabasava v. sangappa 29 b. 1 : 1 a.l.j. 637 : 8 c.w.n. 865 : 6 bom. l.r. 770 : 8 sar. p.c.j. 720 : 31 i.a. 154 (p.c.). that case does not apply to the facts of the present case, but the case which is exactly on all fours with the present case is the case of balmakund v. dalu 25 a. 498 : a.w.n. (1903) 112 (f.b.), where it was held that, although the plaintiff failed to prove the specific tenancy set up by him, he was entitled to a decree on the ground.....
Judgment:

Gokul Prasad, J.

1. This is a defendant's appeal arising out of a suit for ejectment and arrears of rent brought against them by the plaintiff. The pleas taken in defence were that the plaintiff was not the owner of the house, he having sold it to his own father-in-law in 1895. It was further pleaded that the defendants had become owners thereof by virtue of adverse possession for more than 12 years. It also came out that during the trial of the suit in the First Court the plaintiff had sold the house to one Khub Chand. The Trial Court found, (1) that the plaintiff was the owner, (2) that the tenancy had not been proved, and (3) that the defendants did not acquire title by prescription. It decreed the claim for ejectment and dismissed that for rent. The defendants went up in appeal and the plaintiff filed cross-objections. The learned Judge of the lower Appellate Court confirmed the findings of the First Court and dismissed the appeal. He also found that the sale of 1895 by the plaintiff to Bansi Dhar, his father-in-law, was made to defeat creditors and was fictitious and fraudulent with the result that the plaintiff compounded the claims of the creditors at annas four in the rupee with some and at annas eight in the rupee with the others and, therefore, the defendants could not rely on that sale in defeasance of the plaintiff's claim. He also held that the second sale made during the pendency of the suit did not affect the claim. The defendants come here in second appeal and their first contention is, that the plaintiff's claim, based on the tenancy of the defendants, having failed the suit should have been dismissed and reliance has been placed on the case of Shivabasava v. Sangappa 29 B. 1 : 1 A.L.J. 637 : 8 C.W.N. 865 : 6 Bom. L.R. 770 : 8 Sar. P.C.J. 720 : 31 I.A. 154 (P.C.). That case does not apply to the facts of the present case, but the case which is exactly on all fours with the present case is the case of Balmakund v. Dalu 25 A. 498 : A.W.N. (1903) 112 (F.B.), where it was held that, although the plaintiff failed to prove the specific tenancy set up by him, he was entitled to a decree on the ground of ownership, because the defendant had in no way been taken by surprise. In this case also the plea of ownership has been tried and found against the defendants. This ground of appeal fails. The second plea taken in appeal is, that the plaintiff having succeeded in carrying out the fraud under the sale-deed of 1895 and being able to compound the claims of his creditors for much smaller amounts than they were entitled to, is now precluded from putting forward his own title to the property by taking advantage of his own fraud. This plea has a good deal of force behind it [see the case of Petherpermal Chetty v. Muniandy Servai 5 A.L.J. 290 : 10 Bom. L.R. 590 : 12 C.W.N. 562 : 7 C.L.J. 528 : 14 Bur. L.R. 108 : 35 C. 551 : 18 M.L.J. 277 : 35 I.A. 98 : 4 M.L.T. 12 : 4 L.B.R. 266 (P.C.). This plea must prevail. The third plea taken is that the plaintiff had no title at the date of the decree because of the sale of the 26th of November 1919 during the pendency of the suit in favour of Khub Chand and reliance is placed on the case of Ram Gopal v. Piari Lal 21 A. 441 at p. 445 : A.W.N. (1899) 163 : 9 Ind. Dec. (N.S.) 988. It is not necessary to deal at length with this plea, because the suit ought to have been dismissed on the second plea which I have discussed above. The upshot of the above findings is, that the plaintiff's suit ought to have been dismissed. I, therefore, allow the appeal, set aside the decrees of the Courts below and dismiss the plaintiff's claim with costs in all Courts.


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