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Musammat Tarifan and ors. Vs. Fateh DIn and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in15Ind.Cas.685
AppellantMusammat Tarifan and ors.
RespondentFateh DIn and ors.
Cases ReferredKhasay v. Jugla
Excerpt:
u.p. land revenue act (iii of 1901), sections 111, 233(k) - partition--proprietary title--res judicata--person not recorded as co-sharer at the time of partition. - - in that case, the plaintiffs were recorded proprietors and it was the failure of the assistant collector to follow the procedure prescribed, which deprived them of an opportunity of urging their objections......has been thrown out by the courts below on the ground that it is barred by section 233 (k) of the land revenue act, 1901.3. the facts have not been ascertained but they must, for the purposes of this appeal, be assumed to be as follows. imam bukhsh was recorded at the settlement of 1872 as the owner of 80 bighas, 9 biswas of land, the correct area of which, according to the settlement of 1890, was 77 bighas, 17 biswas. he mortgaged the land to defendants nos. 6 and 7 and the ancestor of defendants nos. 1 to 5. previous to a partition, which took place in 1312 fasli, the defendants had ceased to be recorded as mortgagees of the land. defendants nos. 1 to 3 were recorded as owners of one-third of the land and the plaintiffs, other than the present appellants, were recorded as the owners.....
Judgment:

Chamier, J.

1. This appeal arises out of a suit for redemption of a mortgage alleged to have been made by one Imam Baksh in 1859. The plaintiffs are the grand children and great-grand children of Imam Baksh. Defendants Nos. 1 to 5 are the sons and grandsons of one of the three original mortgagees and defendants Nos. 6 and 7 are the other two original mortgagees. Defendants Nos. 8 to 11 are purchasers of the equity of redemption in two thirds of the mortgaged property, who, according to the plaintiffs, declined to join in the suit.

2. The suit has been thrown out by the Courts below on the ground that it is barred by Section 233 (k) of the Land Revenue Act, 1901.

3. The facts have not been ascertained but they must, for the purposes of this appeal, be assumed to be as follows. Imam Bukhsh was recorded at the Settlement of 1872 as the owner of 80 bighas, 9 biswas of land, the correct area of which, according to the settlement of 1890, was 77 bighas, 17 biswas. He mortgaged the land to defendants Nos. 6 and 7 and the ancestor of defendants Nos. 1 to 5. Previous to a partition, which took place in 1312 Fasli, the defendants had ceased to be recorded as mortgagees of the land. Defendants Nos. 1 to 3 were recorded as owners of one-third of the land and the plaintiffs, other than the present appellants, were recorded as the owners of the remaining two-thirds. They, the plaintiffs who were recorded as owners, objected to the partition but their objections were overruled, the partition proceeded and pare of the land which had been included in (he mortgage was assigned to defendants Nos. 1 to 3. The plaintiffs laid no claim to the land purchased by defendants Nos. 8 to 11 and conceded that if they are entitled to maintain this suit, it must be as owners of the land which was assigned at the partition to defendants Nos. 1 to 3. So far as the plaintiffs other than the present appellants are concerned, it is clear that the suit cannot be maintained for they were recorded proprietors, their objections were heard and were over-ruled, and the question of their title is as held by the Courts below res judicata against them see Muhammad Sidiq v. Laute Ram 23 A. 201 : A.W.N. (1901) 86. When a Muhammadan land-owner dies, it often happens that the names of his sons are entered on the records and the names of his widow, and daughters are not recorded though they may be entitled to shares in the property. This is what seems to have happened in the present case. It is conceded on behalf of the appellants that the case is in terms covered by Section 2 33 (k) of the Land Revenue Act, 1901, but it is urged that the case is governed by the ruling in Khasay v. Jugla 28 A. 432 : A.W.N. (1906) 79 : 3 A.L.J. 99, that the prohibition contained in Section 233 (k) applies only to suits with respect to partitions in which the plaintiff has had an opportunity of having his objections considered under Section 111 of the Act and has not availed himself of it. There is a clear distinction between that case and the case before me. In that case, the plaintiffs were recorded proprietors and it was the failure of the Assistant Collector to follow the procedure prescribed, which deprived them of an opportunity of urging their objections. In the present case it is not suggested that the procedure of the Revenue Court was irregular and we know that the relations of the appellants did have an opportunity of urging their objections. The appellants not being recorded proprietors were not entitled to be heard. But it was their fault and not the fault of the Revenue Court that their names were not on the record. When the inheritance devolved upon them, it was their business, if they obtained possession of their shares, to make a report to the Revenue Authorities and ask to have their names entered on the village records and if they did not obtain possession of their shares, they should have sued for possession. The ruling in Khasay v. Jugla 28 A. 432 : A.W.N. (1906) 79 : 3 A.L.J. 99 has engrafted an exception on to the prohibition contained in Section 233 of the Land Revenue Act which has far reaching consequences. It does not cover the present case and in the absence of authority, I feel bound to hold that the present case is covered by the prohibition.

4. The appeal is dismissed with costs.


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