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Hira Vs. Amar Singh and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in2Ind.Cas.454
AppellantHira
RespondentAmar Singh and anr.
Cases ReferredBhagwati v. Banwari Lal
Excerpt:
civil procedure code (act xiv of 1882), section 244 - transferee from auction purchaser--transferee from judgment-debtor in possession--recovery of possession--regular suit. - .....that if it be proved that the defendants hold possession, it may also be delivered.' on hip, plaint he paid only rs. 10 by way of court-fees. the first court gave the plaintiff a declaratory decree, holding that he was in possession of the property. the lower appellate court, however, held differently and found that the plaintiff was not in possession. it held that it was not proved that the plaintiff had ever been in possession or that he had ever made collections of rent or paid revenue. if these assertions are correct one can understand why the plaintiff feared that his statement as to possession might not be believed. finding himself unable to sustain the declaratory decree the learned subordinate judge went on to consider whether he could give the plaintiff the decree for.....
Judgment:

Alston, J.

1. The plaintiff in this suit is said to have acquired certain property from one Daulat Ram, who in his turn is said to have bought the property at an auction sale in execution of a decree. The defendants are said to have acquired the property by purchase from the original mortgagor at a time subsequent to the auction sale. The plaintiff in his plaint alleged that the defendants had succeeded in getting their names entered in the Revenue papers as being in possession of the property, but that in fact they were not in possession as possession was with the plaintiff. The suit was accordingly brought by the plaintiff for a declaration that he was the owner of the property. He sued for this declaration upon the ground that he was in possession. Having some thought, however, in his mind that his alleged possession might be found to be a fiction, he went on to say in his plaint that if it be proved that the defendants hold possession, it may also be delivered.' On hip, plaint he paid only Rs. 10 by way of Court-fees. The first Court gave the plaintiff a declaratory decree, holding that he was in possession of the property. The lower appellate Court, however, held differently and found that the plaintiff was not in possession. It held that it was not proved that the plaintiff had ever been in possession or that he had ever made collections of rent or paid revenue. If these assertions are correct one can understand why the plaintiff feared that his statement as to possession might not be believed. Finding himself unable to sustain the declaratory decree the learned Subordinate Judge went on to consider whether he could give the plaintiff the decree for possession which he had sought as an alternative relief. Upon the authority of two cases reported in Azimdad Khan v. Ghansam Das 1 A.L.J. 20 and Shuo Shanker v. Parma Mehton 1 A.L.J. 282 at p. 285 he held that the plaintiff ought to have proceeded under Section 244 of the Code of Civil Procedure 1882, and not by way of a regular suit. Taking this view ho dismissed the plaintiff's suit. From that decree a second appeal was filed in this Court. Now the two decisions on which the lower appellate Court relied have been reversed by the Full Bench case of Bhagwati v. Banwari Lal 31 A. 82. The lower appellate Court not having considered the question whether the plaintiff had shown a right to possession with reference to title, but having only found that he was not in possession it will be necessary to send the case back in order that this matter may be argued and decided. The lower appellate Court will also consider whether sufficient Court-fees have been paid and pass orders according to the opinion at which it arrives. I, therefore, set aside the decree of the lower appellate Court and remand the case to that Court for decision. Costs will abide the result.


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