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Habib Khan Vs. Fida HusaIn Khan and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1924All270; 71Ind.Cas.1017
AppellantHabib Khan
RespondentFida HusaIn Khan and anr.
Cases ReferredDebi Pershad v. Bhagwan Din
Excerpt:
agra tenancy act (ii of 1901), section 198 - suit by landlord for rent--payment in good faith to third person pleaded--third person made party to suit--decision against third party--civil suit by third party whether bar ed--appeal, second--finding, based en mistake of fact, whether binding. - - bangur pleaded that he had paid the rent in good faith to fida husain......of the rent of the two plots in suit. bangur pleaded that he had paid the rent in good faith to fida husain. fida husain thereupon was made a party to the suit and the suit was ultimately decreed by the appellate court, which decided against fida husain. thereupon fida husain brought this suit for a perpetual injunction restraining the defendant no. 1 from realising more than his share of the rent from the defendant no. 2. both the lower courts have decreed the claim the defendant habib khan comes here in second appeal and three grounds have been pressed on his behalf: (1) that the suit is barred by the provisions of section 11 of the code of civil procedure: (2) that the suit is not cognisable by the civil court and (3) that on a true construction of exhibit a, it is clear that the.....
Judgment:

1. The facts out of which this appeal arises are as follows : Fida Husain Khan, Madar Baksh and Muhammad Ali were co-sharers of the village in suit. Madar Baksh and Muhammad Ali sold' their shares to Musammat Saidunnissa, who was the predecessor-in-title of Habib Khan, defendant No. 1. They became ex-proprietary tenants of their sir. They relinquished their rights, and Bangur, defendant No. 2, became non-occupancy tenant of the plots in suit. In proceedings under Section 36 of the Land Revenue Act it was decided that certain plots, including the plots in suit, were in the exclusive possession of Musammat Saidunnissa Bibi, under a partition of sir land in those proceedings. Subsequently, Habib Khan sued Bangur for the whole of the rent of the two plots in suit. Bangur pleaded that he had paid the rent in good faith to Fida Husain. Fida Husain thereupon was made a party to the suit and the suit was ultimately decreed by the Appellate Court, which decided against Fida Husain. Thereupon Fida Husain brought this suit for a perpetual injunction restraining the defendant No. 1 from realising more than his share of the rent from the defendant No. 2. Both the lower Courts have decreed the claim The defendant Habib Khan comes here in second appeal and three grounds have been pressed on his behalf: (1) that the suit is barred by the provisions of Section 11 of the Code of Civil Procedure: (2) that the suit is not cognisable by the Civil Court and (3) that on a true construction of Exhibit A, it is clear that the land in suit it the exclusive property of the defendant-appellant. The first and the second pleas have no force having regard to Section 198(2) of the Tenancy Act. This suit does not come within the purview of those ruling of this Court which have held that a suit will not lie in a Civil Court if its object is to avoid a decision arrived at by a Revenue Court in a matter in which it had exclusive jurisdiction. There remains the third point. It appears that in the proceedings under Section 36 of the Land Revenue Act, to which we have referred, a petition was put in by Muhammad Ali Khan and Madar Baksh to the effect that the sir land had been partitioned privately between the co-sharers and Musammat Saidunnissa and that she had been given exclusive possession of certain plots as appertaining to her share, and details were given of the plots which were said to have been allotted to the exclusive possession of Musammat Saidunnissa and also of the plots which had been allotted to the other co-sharers. We find that the two plots in suit were there entered as having been allotted exclusively to Musammat Saidunuisa. The learned Subordinate Judge in the Court below dealing with the question of possession has come to what would appear to be a finding of fact, namely, that the appellant, that is to say, Habib Khan, was not in exclusive possession of the plots in suit. We find that, this finding is entirely based on a mistake of fact and, therefore, it is not a finding which can bind us in second appeal. There was no oral evidence in the case. The defendant relied on Exhibit A, which was the application already referred to, filed by Madar Baksh and Muhammad Ali in the proceedings under Section 36 of the Land Revenue Act. Those proceedings ultimately, ended in an order in terms of the application. To those proceedings Fida Husain was a party, and this is the mistake of fact which has vitiated the whole of the finding of the learned Subordinate judge. He says that Exhibit A proves nothing, because the present plaintiff, Fida Husain Khan, was no party to it, and this was the reason which he gives for holding that Habib Khan was not in exclusive possession of the plots in suit. Of course, Fida Husain was no party to the application, but he was a party to the proceedings which ended in an order against him in terms of the application. There being no legal finding on the question of possession under Section 103 of the Code of Civil Procedure, we propose to examine the evidence which is entirely documentary to decide the point. We find that the rent suit, to avoid which this suit was brought, was rightly decided on the ground that the sir land had been partitioned between the co-sharers, and Musammat Saidunnisa was given particular plots of sir land for her exclusive possession and enjoyment, and, as Habib Khanr epresents her now, he must be held to be in possession of those particular plots of sir land and entitled to their rent, whether he cultivates them himself or lets them out to tenants is quite immaterial. It is not a fact, as the learned Munsif seemed to think, that the plots could not be in his exclusive enjoyment if they were actually cultivated by a tenant. In this view of the case the decision in Debi Pershad v. Bhagwan Din 16 Ind. Cas. 399 : 35 A. 27 : 10 A.L.J. 437 has no application, as the facts are different. In our view the decisions of both the Courts below must be reversed and the suit dismissed. We, therefore, allow this appeal, set aside the decrees of both the Courts below and dismiss the plaintiff's 'suit with costs in all Courts.


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