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Mahabat Rai and ors. Vs. Bharaddwaj Damodar Das - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in37Ind.Cas.818
AppellantMahabat Rai and ors.
RespondentBharaddwaj Damodar Das
Excerpt:
agra tenancy act (ii of 1901), sections 150, 152, 158, 173, 177, 180 - settlement officer--resumption, suit for--question of proprietary title raised--appeal to district judge, maintainability of--section 158, scope of--limitation act(ix of l908), section 5--letters patent appeal--delay in filing--sufficient cause--limitation. - - under these circumstances it seems to us that the plaintiff entirely failed to establish such facts as entitled him to a resumption of the land......to resume the land because it was held at the pleasure of the grantor. section 154 provides that land held rent-free shall be liable to resumption only when by the terms of the grant, or by local custom, it is held (a) at the pleasure of the grantor or (b) for the performance of some specific service, religious or secular, which the proprietor no longer requires, or conditional, or for a term, and the condition is broken or the term expires. clause 2 provides that every suit for resumption shall be brought within twelve years from the date on which the right to resume first accrued. the section proceeds to prescribe when the right is deemed first to have accrued. there is a further provision that in cases where the grant was made for the performance of some specific service, notice in.....
Judgment:

1. This appeal arises out of a suit for resumption under Sections 150, and 154 of the Tenancy Act. The case came before Mr. Liddiard, who was then 'Record' and 'Settlement' Officer. Section, 152 provides that suits under Section 150; should (when the local area in which the land is situate is under Settlement), be instituted in the Court of the ' Settlement' Officer. Mr. Liddiard granted the plaintiff a decree. An appeal was taken to the District Judge, who held that the plaintiff was not entitled to resume the land and dismissed the suit. A second appeal was preferred to this Court, when a preliminary objection was taken that no appeal lay. The learned Judge of this Court upheld this plea and ordered the memorandum of appeal to be returned to the appellant, with a view to its being presented in the proper Court. It was accordingly presented in the Court of the Commissioner, who pointed out that an unfortunate error had arisen from the circumstance that Mr. Liddiard occupied the twofold office of Settlement Officer and Record Officer, and had described himself in his judgment as 'Record' Officer. The learned Commissioner held that the appeal lay to the District Judge. Thereupon the defendants applied for a review of judgment to the learned Judge of this Court. This application was rejected, not on the merits, but because the learned Judge considered that the applicants had allowed too long a time to elapse between the decision of the Commissioner and the application for the review of judgment. A Letters Patent appeal has been preferred against the refusal of the learned Judge of this Court to entertain the application for a review of judgment. An appeal has also been preferred against the original decision of the learned Judge of this Court in which he held that no appeal lay to the District Judge. This last-mentioned appeal was filed beyond time and has been admitted subject to the objection of the other side, and the respondents now strongly object to the hearing of the appeal on the ground of limitation. We have considered this question. We think that there were certainly circumstances to explain the delay. Not unnaturally, this High Court, having decided against them, the defendants went to the Commissioner. After the Commissioner had pointed out how the error arose, it was not unnatural that the defendants should go to the learned Judge of this Court in review of judgment, hoping that when the error was pointed out he would allow the appeal to be considered on its merits. It was only when the learned Judge of this Court rejected the application for review that it became necessary to think of preferring an appeal against the original decision. Under all the circumstances of the case we consider that there is sufficient ground for admitting the appeal notwithstanding the delay, and we have accordingly decided to hear it.

2. The first question for consideration is whether an appeal lay to the District Judge. Had it not been for the fact that the area in which the land was situate was under Settlement, the suit for resumption would have come before an Assistant Collector of the first class. Undoubtedly a question of proprietary title was raised by the defendants in the Court of first instance and was also involved in the appeal. Therefore, it is quite clear that had it not been that the suit was instituted in the Court of the Settlement Officer, an appeal would have lain to the District Judge. We have no doubt that the suit must be considered as having been instituted before Mr. Liddiard as 'Settlement' Officer and not as Record Officer. As Record Officer he would have had no jurisdiction of any kind to entertain the suit. Section 152 provides that the Settlement Officer shall have all the powers of the Collector. Section 173 provides that a Collector shall have all the powers conferred on an Assistant Collector of the first class and of a Collector. Section 177 provides that appeals shall lie from the decree of the Assistant Collector of the first class in different classes of cases, and amongst others in all suits in which a question of proprietary title has been in issue in the Court of first instance and is a matter in issue in the appeal. Section 180 provides that an appeal shall lie from an Original decree or order of a Collector in the same manner and under the same conditions as from a decree or order of an Assistant Collector of the first class. Reading all these Sections together we consider that an appeal lies from the Settlement Officer as if he was the Collector, to the District Judge. Mr. Agarwala has argued with great ingenuity that Section 152 only provides that the Settlement Officer shall have the powers of a Collector under Chapter X, that is to say, he shall have only such powers as are conferred on the Collector by that Chapter. The drafting of the Section is one more example of want of skill in the drawing up of the Tenancy Act. No powers of any kind are conferred upon the Collector by Chapter X. We must read it as if the words ' under this Chapter' were either omitted altogether, or placed in another part of the Section, or the words 'who 'shall have the powers of a Collector' are read as in a parenthesis. We think that an appeal lay to the District Judge and that the learned Judge of this Court ought to have heard the appeal on its merits. We proceed to do so.

3. The plaintiff came into Court alleging that he was entitled to resume the land because it was held at the pleasure of the grantor. Section 154 provides that land held rent-free shall be liable to resumption only when by the terms of the grant, or by local custom, it is held (a) at the pleasure of the grantor or (b) for the performance of some specific service, religious or secular, which the proprietor no longer requires, or conditional, or for a term, and the condition is broken or the term expires. Clause 2 provides that every suit for resumption shall be brought within twelve years from the date on which the right to resume first accrued. The Section proceeds to prescribe when the right is deemed first to have accrued. There is a further provision that in cases where the grant was made for the performance of some specific service, notice in writing has to be given by the proprietor to the grantee that the service is no longer required. It is not pretended in the present case that the plaintiff was entitled to resume the land on any other ground than that it was held 'at the pleasure of the grantor.' That is the only ground upon which the plaintiff came into Court. It has been found that the land has been held free of rent for five generations and more than 50 years. There was no evidence that by the terms of the grant or local custom the grantee held at the will and pleasure of the grantor. Under these circumstances it seems to us that the plaintiff entirely failed to establish such facts as entitled him to a resumption of the land. Section 158 provides that land which is not liable to resumption under Section 154, and which has been held rent-free for 50 years, and by two successors to the original grantee, shall be deemed to be held in proprietary right. It is contended that this Section can only apply to grants made subsequent to the passing of the Tenancy Act. We do not think that this contention is correct. It is quite clear that the Legislature intended to confer such rights upon certain individuals who had been in occupation of the land for the periods mentioned in the Section, irrespective of when that occupation commenced.

4. We think the view taken by the learned District Judge was correct and should be affirmed. We allow the appeal, set aside the decree of the learned Judge of this Court and restore the decree of the District Judge with costs of both hearings in this Court.


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