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Asghar HussaIn Vs. Pal Ahir and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in15Ind.Cas.227
AppellantAsghar Hussain
RespondentPal Ahir and ors.
Excerpt:
estoppel - occupancy-holding mortgaged as a fixed-rate tenure--no objection by the judgment-debtor tenant at the time of suit or sale by the mortgagor. - - it is clear that the defendants as well as the zemindar gave out that the tenure was a fixed-rate tenure, that is, one transferable in execution of a decree. any right which tie defendants bad as tenants disappeared long ago, and when on the 16th of october 1908, they dispossessed the plaintiff, the latter had at least a possessory title, while the defendant had no title whatsoever......a certain holding. on the 4th of june 1835, they mortgaged this holding describing it as a fixed-rate tenure in favour of the zemindar of the village. a suit was brought to enforce the mortgage in december 1895 and on the 27th of july 1893, a decree for sale was passed. on the 23rd of august 1397, the property was sold as a fixed-rate tenure and was purchased by the plaintiff a stranger to that suit. the judgment-debtors objected to the zemindar bring allowed to bid at the sale. on the 2nd of november 1897, a sale-certificate was granted to the plaintiff. from that date up to the 16th of october 1908, the plaintiff had been in possession of the holding paying rent to the zemindar. on the latter date, he was dispossessed by the defendants, who asserted that the land was their.....
Judgment:

1. The facts of the case out of which this appeal has arisen are as follows: The predecessors-in-title of the defendants respondents were occupancy-tenants of a certain holding. On the 4th of June 1835, they mortgaged this holding describing it as a fixed-rate tenure in favour of the zemindar of the village. A suit was brought to enforce the mortgage in December 1895 and on the 27th of July 1893, a decree for sale was passed. On the 23rd of August 1397, the property was sold as a fixed-rate tenure and was purchased by the plaintiff a stranger to that suit. The judgment-debtors objected to the zemindar bring allowed to bid at the sale. On the 2nd of November 1897, a sale-certificate was granted to the plaintiff. From that date up to the 16th of October 1908, the plaintiff had been in possession of the holding paying rent to the zemindar. On the latter date, he was dispossessed by the defendants, who asserted that the land was their occupancy-tenure. Hence the present suit was brought by the plaintiffs to. recover possession. The Court of first in-stance and the lower Appellate Court decreed the claim. On second appeal to this Court, the learned Judge, before whom the case came, dismissed the suit holding that as a right of occupancy could not be sold in execution of a decree, the plaintiff acquired no title to the holding and, therefore, he was not entitled to a decree in a suit for ejectment against the defendants. Two points are pressed before us. The first is that the judgment-debtors are estopped from saying that the tenure was an occupancy-tenure and not a fixed-rate tenure, and, secondly, even though no title passed to the plaintiff by the auction-sale, still on the 16th of October 1908, the defendants had no title themselves and, therefore, the plaintiff is entitled to a decree for possession against them on the strength of his possessory title. We think both these contentions are sound. It is clear that the defendants as well as the zemindar gave out that the tenure was a fixed-rate tenure, that is, one transferable in execution of a decree. The judgment-debtors in the mortgage-suit raised no objection whatsoever, either in the course of the suit or in execution proceedings, on the ground that the tenure was not transferable under law. The plaintiff, acting on the belief that the tenure was a fixed rate tenure as stated by the parties to the mortgage-deed and the mortgage-suit, purchased it. We think that it does not lie in the mouth of the defendants to say now that the tenure was not a fixed-rate tenure. Furthermore, it is quite clear that for about eleven years the defendants had been out of possession. The plaintiff has held possession and has been accepted by the zemindar as a tenant and has paid rent for the holding. Any right which tie defendants bad as tenants disappeared long ago, and when on the 16th of October 1908, they dispossessed the plaintiff, the latter had at least a possessory title, while the defendant had no title whatsoever. On the basis of his possessory title alone the plaintiff would be entitled to a decree. We allow this appeal, set aside the judgment of the learned Judge of this Court and restore the decree of the lower Appellate Court. The plaintiff will have his costs throughout.


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