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Tapesar Singh and ors. Vs. Chhabi Ahir and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Reported inAIR1933All631
AppellantTapesar Singh and ors.
RespondentChhabi Ahir and ors.
Cases ReferredBasdep Narain v. Muhammad Yusuf
Excerpt:
- - as such managers they had undoubtedly the authority to let out agricultural plots of land to tenants in the ordinary course of management of the zamindari property, and, as such, they were perfectly competent to grant to the defendant-respondent an ordinary lease. in this view of the matter the decree of the lower appellate court is perfectly correct and we dismiss this appeal with costs......second party leased the plots in dispute in perpetuity to the defendant-respondent. one of the plots leased is situate in the district of ghazipur and the remaining plots are in the province of bihar. the suit giving rise to the present appeal was brought in the court of the subordinate judge of ghazipur. the plaintiffs impugned the validity of the lease on the ground that it was without consideration and without any family necessity. the defendant resisted the suit on a variety of grounds. he maintained that the lease was for consideration, for family necessity and having been granted by persons who were the managers of the family was valid and binding on the plaintiffs. he further contended that the plaintiffs were in no case entitled to a decree for possession. it is not necessary.....
Judgment:

Iqbal Ahmad, J.

1. This is a plaintiffs' appeal and arises out of a suit for a declaration that the lease dated '29th May 1917, is invalid and for a decree for joint possession over the plots in respect of which the said lease was granted. It is common ground that the plaintiffs and the defendants second party are the members of a joint Hindu family. Bansidhar and Sheojanam Singh who were among the defendants second party leased the plots in dispute in perpetuity to the defendant-respondent. One of the plots leased is situate in the District of Ghazipur and the remaining plots are in the province of Bihar. The suit giving rise to the present appeal was brought in the Court of the Subordinate Judge of Ghazipur. The plaintiffs impugned the validity of the lease on the ground that it was without consideration and without any family necessity. The defendant resisted the suit on a variety of grounds. He maintained that the lease was for consideration, for family necessity and having been granted by persons who were the managers of the family was valid and binding on the plaintiffs. He further contended that the plaintiffs were in no case entitled to a decree for possession. It is not necessary to notice the other pleas embodied in the written statement as we are not concerned with them in the present appeal.

2. The defendant's vakil made a statement at the trial that the defendant had no objection to a decree for possession being passed in favour of the plaintiffs with respect to plot No. 570 that was situate in the District of Ghazipur. The learned Subordinate Judge held that the perpetual lease was not justified by any family necessity and accordingly the plaintiffs were not bound by the same. He however held that notwithstanding the invalidity of the lease the plaintiffs were not entitled to a decree for possession of the plots other than plot No. 570 inasmuch as the lease had been granted by the managers of the family of the plaintiffs and those managers had the right in the ordinary course of the management of the zamindari, to let out the plots in dispute to the defendant. In view of this finding the learned Subordinate Judge passed a decree declaring that the lease is null and void and ineffectual as against the plaintiffs, but dismissed the claim with respect to the plots in the province of Bihar. He however in view of the statement made by the plaintiffs' counsel, passed a decree for possession of plot No. 570 in the plaintiffs' favour. On appeal by the plaintiffs the lower appellate Court affirmed the decree of the trial Court. It held that though the permanent lease in favour of the defendant was null and void the defendant could not be regarded as a trespasser

merely because the lessor exceeded his power in executing the permanent lease inasmuch as the lessee had occupied the property for a number of years and had been paying rent regularly.

3. The plaintiffs have come up in second appeal to this Court and it is argued on their behalf that, the lease having been declared to be null and void, the. plaintiffs were entitled to a decree for joint possession over the plots in dispute. It is pointed out by the learned Counsel for the plaintiffs that a suit for ejectment of a tenant in the province of Bihar lies in the Civil Court, as the suit giving rise to the present appeal was filed in a Court having jurisdiction to entertain the same, the Courts below ought to have passed a decree for possession in the plaintiffs' favour. We are unable to agree with this contention. Notwithstanding the invalidity of the lease the defendant-respondent cannot be treated as a trespasser. It is not disputed that Bansidhar and Sheojanam Singh were the managers of the joint family consisting of themselves and of the plaintiffs. As such managers they had undoubtedly the authority to let out agricultural plots of land to tenants in the ordinary course of management of the zamindari property, and, as such, they were perfectly competent to grant to the defendant-respondent an ordinary lease. If they had let out the plots to the defendants without executing a perpetual lease in his favour the defendant's possession could not be deemed to be in the capacity of a trespasser. It was only by granting a permanent lease that they exceeded their power as managers. That lease has been declared to be null and void, but the position of the defendant, notwithstanding the invalidity of the lease, remains that of a tenant. This was the view taken by this Court in the case of Basdep Narain v. Muhammad Yusuf : AIR1928All617 . The defendant being a tenant could be ejected only in due course of law by a suit under the Bengal Tenancy Act. It is provided by Section 188 of that Act that

where two or more persons are joint landlords, anything which the landlord is under this Act required or authorized to do must be done either by both or all those persons acting together, or by an agent authorized to act on behalf of both or all of them.

4. It is clear therefore that the suit for ejectment of a tenant by one out of various cosharers is not maintainable. In the present case the defendants second party are the cosharers of the plaintiffs and they did not join the plaintiffs in the suit. The plaintiffs could not therefore in the present case, be granted a decree for possession of the plots in dispute by ejectment of the defendant-respondent. In this view of the matter the decree of the lower appellate Court is perfectly correct and we dismiss this appeal with costs.


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