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Ali HusaIn and ors. Vs. Hakim-ul-lah and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1916All200; 33Ind.Cas.187
AppellantAli HusaIn and ors.
RespondentHakim-ul-lah and ors.
Cases ReferredRam Gobind v. Sri Thakurji Maharaj
Excerpt:
regulation xxxi of 1803, section 6 - sale--vendee agreeing to pay revenue for land sold as well as for land in vendor's possession--personal covenant--sale by vendor of land in his possession--vendee's liability. - .....the vendor. no mention is made in the sale-deed of the transferees or even of the heirs of altaf husain, the vendor. the covenant was a personal covenant and it is difficult to see how the present plaintiff has any right to sue for a breach of a personal covenant which was entered into between his vendor and the predecessor-in-title of the defendants. on this part of the case the appellants rely on the case of sri thakurji maharaj v. lachmi narain 19 ind. cas. 67 : 11 a.l.j. 212 and also on the case of ram gobind v. sri thakurji maharaj 19. ind. cas. 126 : 11 a.l.j. 231. in both these cases the circumstances were very similar. we think that the appeal has force, but under the circumstances we think that the parties should pay their own costs in all courts. we accordingly allow the.....
Judgment:

1. This appeal arises out of a suit in which the plaintiff alleges that one Altaf Husain had sold certain property to the predecessor of the defendants reserving to himself ten bighas, that in the sale-deed Inayat Husain, the vendee, covenanted that he would pay 'the Government revenue not only of the land he purchased but also of the ten bighas which the vendor reserved. The plaintiff says that Altaf Husain subsequently sold to him the ten bighas reserved, that the defendants recently refused to pay the Government revenue on the ten bighas, that he had to pay it himself under protest and that he now brings the suit to recover the amount which he has paid to Government. The Courts below have decreed the plaintiff's claim. Two objections are taken on appeal. First, that on the authority of Sahib Ali v. Subhan Ali 21 A. 12 A.W.X. (1898) 149 which was followed by another Bench of this Court in Second Appeal No. 275 of 1910, decided on December 8th, 1910, the agreement was void under Regulation XXXI of 1803 and secondly, that the agreement does not give any right to the plaintiff to enforce it against the defendants. We find it impossible to distinguish the circumstances of the present case in principle from those in the authorities cited. It is true that the Regulation has been repealed, but it was in force in 1884, when the sale to Inayat Husain was made. With regard to the agreement we may mention that the covenant was a covenant that the ten bighas reserved should always remain free of revenue with the vendor. No mention is made in the sale-deed of the transferees or even of the heirs of Altaf Husain, the vendor. The covenant was a personal covenant and it is difficult to see how the present plaintiff has any right to sue for a breach of a personal covenant which was entered into between his vendor and the predecessor-in-title of the defendants. On this part of the case the appellants rely on the case of Sri Thakurji Maharaj v. Lachmi Narain 19 Ind. Cas. 67 : 11 A.L.J. 212 and also on the case of Ram Gobind v. Sri Thakurji Maharaj 19. Ind. Cas. 126 : 11 A.L.J. 231. In both these cases the circumstances were very similar. We think that the appeal has force, but under the circumstances we think that the parties should pay their own costs in all Courts. We accordingly allow the appeal set aside the decrees of both the Courts below and dismiss the plaintiff's suit and direct that the parties pay their own costs in all Courts.


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