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Muneshar Tewari Vs. Musammat Mahesha Kueri and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in74Ind.Cas.197
AppellantMuneshar Tewari
RespondentMusammat Mahesha Kueri and ors.
Cases ReferredJhamman v. Farrukhabad Sel. Dec. No.
Excerpt:
agra tenancy act (ii of 1901), sections 4(5), 58, 63, 194(3) - co-sharer entitled to collect rent--ejectment suit by him, if maintainable. - - this has been clearly found by the learned district judge. however that maybe, it is in my opinion good law......for ejectment under section 63 of the tenancy act. the plaintiff is alone entitled to collect the entire rent from the tenants. this has been clearly found by the learned district judge. the learned district judge, however, was of opinion that though the plaintiff was entitled to the entire rent he was not entitled to eject the defendant without the concurrence of the entire body of co-sharers. it is hardly necessary to point out that this view, if correct, would be productive of great inconvenience, especially in the eastern districts where co-sharers ere often very numerous. the learned district judge gives two reasons in support of his decision. the first is that section 194 only makes an exception in the case of money-suits, and the other that the word landholder does not occur in.....
Judgment:

Daniels, J.

1. This is an appeal by the plaintiff in a suit for ejectment under Section 63 of the Tenancy Act. The plaintiff is alone entitled to collect the entire rent from the tenants. This has been clearly found by the learned District Judge. The learned District Judge, however, was of opinion that though the plaintiff was entitled to the entire rent he was not entitled to eject the defendant without the concurrence of the entire body of co-sharers. It is hardly necessary to point out that this view, if correct, would be productive of great inconvenience, especially in the eastern districts where co-sharers ere often very numerous. The learned District Judge gives two reasons in support of his decision. The first is that Section 194 only makes an exception in the case of money-suits, and the other that the word landholder does not occur in Section 58 of the Tenancy Act. The reference to Section 194 is doubtless to Sub-section (3). This sub-section, however, only applies where one of two or more co-sharers is not entitled to sue alone which is the whole point in dispute in this case. It is quite true, as the learned District Judge says, that Section 58 does not contain the word landholder there is no reason why it should, as it only specifies the grounds of ejectment. The operative section under which the tenant is ejected is Section 63, and the very opening words of this section are 'when a landholder desires to eject o tenant.' Landholder is defined in Section 4(5) as the person to whom rent is payable, and it is, in my opinion, clear law that the co-sharer who is entitled to collect the entire rent of a particular tenant is also entitled to eject him. He is the landholder for the purposes of the Act. This view was also taken by the Board of Revenue in Jhamman v. Farrukhabad Sel. Dec. No. 2 of 1910 a decision which has been followed in many subsequent cases. I am told by Mr. Agarwala that this decision has recently been dissented from by the present junior member in a ruling which has not yet been reported. However that maybe, it is in my opinion good law. It was finally urged by Mr. Agarwala for the respondents that the District. Judge's decision does not cover all the pleas which were urged before him. I have accordingly been through the grounds of appeal with the Counsel and it is found that the only plea that can be said to be not covered by the judgment is that contained in paragraph 6 of the memorandum of appeal. In that the defendant urged that he had required occupancy rights. This point is not covered either directly or by implication in the judgment of the Court below and the learned Judge does not say that it was not urged before him. I accordingly remit an issue under Order XII, Rule 25, to the lower Appellate Court: Has Musammat Murta Kuer, the defendant, acquired occupancy right in the land in suit?

2. On receipt of the finding, which should be submitted by 30th June, ten days will be allowed for objections. The findings will be decided on the evidence already on the record.


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