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Musammat Phul Bibi Vs. Zahur Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Judge
Reported inAIR1915All214; 28Ind.Cas.849
AppellantMusammat Phul Bibi
RespondentZahur Ali and ors.
Excerpt:
ejectment - occupancy tenant--tenants, whether entitled to keep house appurtenant to his holding. - - elaichi failed to get possession of the holding and the defendants have been ejected from the holding......j.1. this appeal arises out of a suit brought by phul bibi, now represented by the appellant bela bibi, for possession of a house, bhusauli, cattle-trough, et cetera, on the allegation that one kariman occupied them as appurtenances to his holding under the plaintiff and that kariman died without issue; but musammat elaichi, a daughter of kariman's wife, who had died, had set herself up as a daughter of kariman. the defendants in the suit are the sons and husband of. musammat elaichi. the plaintiff, alleged that the defendants had entered into possession of the holding and of the house property in dispute though they were not entitled to do so as heirs of kariman, and that they had been ejected from the holding by the revenue court. the defendants pleaded that on the death of.....
Judgment:

Chamier, J.

1. This appeal arises out of a suit brought by Phul Bibi, now represented by the appellant Bela Bibi, for possession of a house, bhusauli, cattle-trough, et cetera, on the allegation that one Kariman occupied them as appurtenances to his holding under the plaintiff and that Kariman died without issue; but Musammat Elaichi, a daughter of Kariman's wife, who had died, had set herself up as a daughter of Kariman. The defendants in the suit are the sons and husband of. Musammat Elaichi. The plaintiff, alleged that the defendants had entered into possession of the holding and of the house property in dispute though they were not entitled to do so as heirs of Kariman, and that they had been ejected from the holding by the Revenue Court. The defendants pleaded that on the death of Kariman, Mlaichi, who was his daughter, entered into possession of the house property. They also pleaded that they were tenants along with Ellaichi of other lands in the village and that they could not be ejected from the house while they still cultivated land in the village, though that land did not belong to the plaintiff. The lower Appellate Court found that the defendants were the sons of Elaichi who was the daughter of Kariman, that the defendants' mother had been ejected from the holding by the Revenue Court, but that they were entitled to retain possession of the house property. I remitted two issues to the lower Appellate Court by my order of July 2nd, last and on these issues the Additional Judge has found that the house, bhusauli, et latent, were appurtenant to the holding of Kariman, that defendants had been ejected from their entire hold in or in the khaha land, with which alone the plaintiff was concerned, and that the plaintiff had no interest whatever in any land that might still be in the cultivation of Elaichi. On these findings it seems to me that the plaintiff is entitled to succeed. The house was appurtenant to the holding; Elaichi failed to get possession of the holding and the defendants have been ejected from the holding. The defend ants cannot in any view of the case retain possession of house property.

2. It appears that the original plaintiff, Phul Bibi, died after my order of July 2nd. The lower Appellate Court brought Musammat Bela Bibi in as representative of the original plaintiff. When this was brought to my notice, I required Bela Bibi to submit an application for substitution of names to this Court. Such an application was presented and under the orders of Mr, Justice Rafique the name of Bela Bibi was substituted for that of Phul Bibi. Now it is said that I cannot take any notice of the findings of the lower Appellate Court, because they were arrived at before the passing of the order of this Court substituting Bela Bibi for Phul Bibi. It is not suggested by the learned Vakil for the defendants that he has any further evidence to offer, the subject or that he was in any way prejudiced by the mistake of procedure that was committed. His opponent was and is Bela Bibi and in these circumstances, I see no reason why I should send the case back in order that the District Judge may rewrite his order. On the facts as found, I hold that the plaintiff is entitled to possession of the property in suit as against the defendants who appear to me to have never had any title whatever. I allow this appeal, set aside the decree of the lower Appellate Court and restore that of the Court of first instance with costs here and in the lower Appellate Court.


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