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Kalyan and ors. Vs. Tika Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in2Ind.Cas.353
AppellantKalyan and ors.
RespondentTika Ram and ors.
Cases Referred and Lal Singh v. Khaliq Singh
Excerpt:
agra tenancy act (ii of 1901), section 180 - appellate decree of collector in rent suit--question of proprietary title raised--no appeal to district judge--subsequent unit for declaration of title in civil court--res judicata. - .....ram and bhawani. the first court (assistant collector of the second class) dismissed the suit. on appeal to the collector he got a decree in 1906. the collector in his judgment said, the fact remains that the appellant is undoubtedly landlord. the respondents are and have been for a considerable time recorded as occupancy tenants paying a certain rent. this is quite sufficient for this court. respondents can either go to the civil court or apply for abatement of rent. i see no reason to go behind this entry which is not new and in refutation of which there is no very convincing evidence'. tika ram got a decree and the defendants under the provisions of section 180 of the agra tenancy act could have appealed to the district judge, as according to their defence a question of proprietary.....
Judgment:

Karamat Husain, J.

1. One Umrao Gir was the owner of certain zamindari share in mauza Karanpur. He first executed a lease in favour of Ram Bakhsh. In 1872 he again executed a perpetual lease in his favour. Ram Bakhsh had five sons, namely Kallian, Jha Ram, Nirmil, Bhawani and Phullu. Tika Ram, son of Nirmal, purchased the zamindari right of Umrao Gir from his disciple and brought an action against Kallian and the descendants of Jha Ram and Bhawani. The first Court (Assistant Collector of the second class) dismissed the suit. On appeal to the Collector he got a decree in 1906. The Collector in his judgment said, The fact remains that the appellant is undoubtedly landlord. The respondents are and have been for a considerable time recorded as occupancy tenants paying a certain rent. This is quite sufficient for this Court. Respondents can either go to the Civil Court or apply for abatement of rent. I see no reason to go behind this entry which is not new and in refutation of which there is no very convincing evidence'. Tika Ram got a decree and the defendants under the provisions of Section 180 of the Agra Tenancy Act could have appealed to the District Judge, as according to their defence a question of proprietary title was in issue, but they did not appeal and allowed the decree to become final. The plaintiffs then brought the suit, which has given rise to the present appeal and prayed for a declaration that under the lease, dated the 8th of November 1872 executed by Umrao Gir in favour of Ram Bakhsh ancestor of the parties the plaintiffs were the perpetual lessees of 3/4 ths of a 3 biswa 6 3/4 biswansi zamindari share and that they were not the tenants of the defendants with respect to the sir land of which they were in possession, nor were they liable to pay any rent thereof to the defendants. I may note here that the decree of the Collector dated the 28th of Juno 1906 relates to the rent of these very plots. One of the pleas in defence was that the decree of the Collector dated the 28th of June 1906 operated as res judicata. The learned Munsif decreed the claim for a declaration, but held that the plots were not sir or khudkasht. He further held that plots Nos. 266, 267, 518 and 520 entered in the name of Musammat Kesar were their tenancy holding but that the right of tenancy was in abeyance and that the rest of the plots were the tenancy of the defendants. It is difficult to understand what the learned Munsif means by saying that the right of tenancy is in abeyance. Both the parties appealed to the lower appellate Court. The lower appellate Court allowed the appeal of the defendants and dismissed the claim of the plaintiffs with costs. It dismissed the appeal of the plaintiffs. The plaintiffs have preferred second appeals from both the decrees and the ground taken is that the decision of the Collector, dated the 28th of June 1906 does not operate as res judicata as the question of title was not decided by him. The Collector no doubt in his judgment observed that the plaintiffs could either go to the Civil Court or apply for abatement of rent, but at the same time he gave a decree against the plaintiffs holding them to be occupancy tenants, and as the plaintiffs allowed that decree to become final they, in my opinion, are not entitled to have that decree in directly nullified by obtaining a declaration from the Civil Court that in respect of the plots of which they have been held to be occupancy tenants they are the proprietors. The learned Counsel for the appellant relies on an unreported case, First appeal from order No. 91 of 1905, dated the 6th of January 1906 in which a Division Bench of this Court said, 'We agree with the judgment of the learned Judge and in the reasons given by him for coming to the conclusion at which he arrived. We accordingly dismiss the appeal with costs. This judgment of the Division Bench, in my opinion, can not be regarded as an authority for the proposition that if a defendant, who is declared by the Collector in its appellate decree to be an occupancy tenant and who has not appealed against that decision under the provisions of Section 180 of the Agra Tenancy Act to the District Judge can in a Civil Court obtain a declaration that he is not an occupancy tenant of those plots but a proprietor of them. The principle laid down in Bihari Rai v. Sheobalak 29 A. 601 and Lal Singh v. Khaliq Singh (1909) 2 Ind. Cas. 218 : 6 A.L.J. 259 applies to this case and the Civil Suit brought by the plaintiffs is barred by the principle of res judicata, I, therefore, dismiss the appeal with costs.


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