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Malkhan Singh Vs. Gulab Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1929All32; 113Ind.Cas.732
AppellantMalkhan Singh
RespondentGulab Singh and anr.
Cases ReferredMubarak Fatima v. Muhammad Wuli Khan A.I.R. All.
Excerpt:
- .....civil court, the difficulty, however, is that at some time or other the plaintiff malkhan singh's name was recorded in the revenue records. i have no information whether such a record existed on the date of the institution of the present suit on 29th july 1923. or not. if the plaintiff's name did exist in the record he was entitled to sue under the presumption enjoined by section 201(3), tenancy act. it has been held by a full bench of this court in durga prasad v. kuer hazari singh [1911] 33 all. 799 that the presumption is not rebuttable. if so even a previous civil court decree declaring the transfer in favour of the plaintiff to be void will not deprive him of his right to sue. of course it will not be necessary to prove that the plaintiff's name did not exist in the record for the.....
Judgment:

Dalal, J.

1. I have some difficulty in coming to a decision in this case without further evidence. The plaintiff sued for the recovery of profits for the year 1237 Fasli. It is certain that the basis of his title was unsound and he had really no title to the property. He purchased the property from one Raghubir Singh who was prior to the institution of the suit declared not to be the owner of the property, and the sale in favour of the plaintiffs, was specifically declared to be null and void by a civil Court, The difficulty, however, is that at some time or other the plaintiff Malkhan Singh's name was recorded in the revenue records. I have no information whether such a record existed on the date of the institution of the present suit on 29th July 1923. or not. If the plaintiff's name did exist in the record he was entitled to sue under the presumption enjoined by Section 201(3), Tenancy Act. It has been held by a Full Bench of this Court in Durga Prasad v. Kuer Hazari Singh [1911] 33 All. 799 that the presumption is not rebuttable. If so even a previous civil Court decree declaring the transfer in favour of the plaintiff to be void will not deprive him of his right to sue. Of course it will not be necessary to prove that the plaintiff's name did not exist in the record for the year in suit. The information really wanted is whether on the date of the institution of the suit the name existed or not. Having regard to the ruling in the case of Mubarak Fatima v. Muhammad Wuli Khan A.I.R. All. 102 what I take the law to be as laid down by the rulings of this Court is that the presumption is unrebuttable if a plaintiff is a recorded cosharer on the date of the institution of the suit. But if he is not such a recorded cosharer on the date of the institution of the suit he cannot sue for the period during which his name was wrongly recorded. It is certain here that all the time that the plaintiff's name was recorded, it was wrongly recorded and not on the basis of a legal title. If on the date of the institution of the suit, 29th July 1923, the plaintiff's name was on the record, my opinion is that the suit will have to be decreed.

2. An issue is remitted to the Court of the Assistant Collector to report to this Court whether on 29th July 1923 the plaintiff's name was recorded in the khewat or not. Return shall be made within three months. On receipt of the return ten days shall be allowed to parties to object. Both parties shall be entitled to produce evidence oral and documentary, in the Court of trial.


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