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Abdul Ghafoor Vs. Sri Thakur Ram Krishna Murari Ji and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1935All1018; 158Ind.Cas.434
AppellantAbdul Ghafoor
RespondentSri Thakur Ram Krishna Murari Ji and ors.
Cases ReferredMohamad Baqar v. Mango Lal
Excerpt:
- - the defendant contended that he had been in possession over the plots in dispute from before the lease in dispute with the permission of the proprietors, hari chand and madan mohan, and had built a kuchcha bungalow, a house and a well with their permission on the land in dispute, subsequently in 1925 he got the lease in dispute from hari cband's general attorney, jugal kishore and that he was not liable for ejectment......declaring that the lease dated 4th november 1925, executed by jugal kishore, general attorney of hari chand in favour of the defendant is invalid, ineffectual and null and void against the plaintiff. the plots in dispute belonged to hari chand and madan mohan who were brothers. both the brothers had mortgaged their proprietary rights. in 1924 the share of hari chand was sold in the mortgage decree and was purchased by ram gopal. madan mohan died sometime in 1924 or 1925 without an issue and his share was succeeded to by hari chand. so hari chand again became the owner of half of the mahal. this share was also sold in 1927 and purchased by the plaintiff. the plaintiff after the purchase of this half-share purchased from ram gopal hari chand's share also which had been purchased by ram.....
Judgment:

Ganga Nath, J.

1. This is a defendant's appeal and arises out of a suit brought against him by the plaintiff to recover possession over plots Nos. 141 and 142 described in the plaint by declaring that the lease dated 4th November 1925, executed by Jugal Kishore, general attorney of Hari Chand in favour of the defendant is invalid, ineffectual and null and void against the plaintiff. The plots in dispute belonged to Hari Chand and Madan Mohan who were brothers. Both the brothers had mortgaged their proprietary rights. In 1924 the share of Hari Chand was sold in the mortgage decree and was purchased by Ram Gopal. Madan Mohan died sometime in 1924 or 1925 without an issue and his share was succeeded to by Hari Chand. So Hari Chand again became the owner of half of the mahal. This share was also sold in 1927 and purchased by the plaintiff. The plaintiff after the purchase of this half-share purchased from Ram Gopal Hari Chand's share also which had been purchased by Ram Gopal in 1924. The plaintiff thus became the owner of the whole mahal. In September 1925, Hari Chand who was the lambardar of the mahal executed a general power of attorney in favour of Jugal Kishore. On 4th November 1925, Jugal Kishore executed a lease of the plots (Nos. 141 and 142) whose area was 23 bighas 6 biswas in favour of the defendant-appellant, Abdul Ghani, for 25 years. At the time this lease was given Harj Chand and Ram Gopal were the owners of the mahal and Hari Chand was the lambardar. The plaintiff filed this suit in 1930 for possession over the plots in dispute with a declaration that the lease was void and ineffectual against him. The defendant contended that he had been in possession over the plots in dispute from before the lease in dispute with the permission of the proprietors, Hari Chand and Madan Mohan, and had built a kuchcha bungalow, a house and a well with their permission on the land in dispute, subsequently in 1925 he got the lease in dispute from Hari Cband's general Attorney, Jugal Kishore and that he was not liable for ejectment. The trial Court found the lease as valid and dismissed the suit. On appeal the learned Additional District Judge found that the lease was not beneficial and was invalid and decreed the suit. The lower appellate Court further found that Ram Gopal had not consented to the lease in dispute and that the suit was within time.

2. The first point urged by the learned Counsel for the appellant is that the lease is valid and binding inasmuch as it was beneficial. As already stated the learned Judge has found that the lease is not beneficial. He says:

So 2 biswas of land are let by the railway for Rs. 35. Having regard to this fact how is it possible to say that Rs. 11-11-0 is a fair rent for 23 bighas odd of land in question? There can be no doubt that the rent is an inadequate one. Consequently the lease cannot be for the benefit of the co-sharers.

3. The learned Judge further found that the lease was granted to injure the mortgagee's interests and that there was no circumstance to show that the granting of the lease for 25 years was a necessity and beneficial to the interests of the co-sharers. I agree with this finding of the learned Judge and find that the lease was not beneficial, but was granted on a very inadequate rent for a very long term of period to injure the interests of the mortgagees. The next point urged by the learned Counsel for the appellant was that the appellant had been in possession before the lease as a licensee and that he was not liable for ejectment. As this point has not been considered by the lower Court, issues were remitted on which findings have been received. The lower Court has found that the appellant had no building of permanent nature on the land before the lease and that the building which was of a temporary nature which he had built before the lease had also fallen down before the lease and he has also found that there was no license for making the construction in favour of the appellant. That it was so is apparent from the fact that there is no mention of any building in the lease. If there had been any building at the time of the lease or if the appellant had been allowed to construct any building on it before the lease, there must have been some mention of it in the lease. The land was given to the appellant for storing fuel and he had been using this land before the lease for the same purpose. Under these circumstances the appellant has no right to remain in possession independently of his rights under the lease.

4. The third point urged by the learned Counsel for the appellant was that the suit was time-barred inasmuch as the lease was given on 4th November 1925, and the plaintiff purchased half of the property on 21st February 1927, since when the plaintiff should be presumed to have notice of the lease which was registered and under Article 91, Limitation Act, the suit having been brought beyond three years would be time-barred. In order to appreciate this argument of the learned Counsel it has to be seen whether Article 91, Limitation Act, applies. The learned Counsel relies on Mohammad Nazir v. Zulaikha Bibi 1928 All. 267. This case is distinguishable inasmuch as the suit was brought for a mere declaration that the sale deed dated 26th August 1918, was null and void and that the defendants had not acquired any right thereby. This document had been executed by the plaintiff himself in favour of the defendants. When a person seeks to recover property against an instrument executed by himself or one under whom he claims be must first obtain the cancellation of the instrument and the three years' rule enacted by Article 91 applies to a suit brought by such person. But where an instrument of alienation is executed by a person who is not the full owner of the property, but has only conditional authority to dispose of it the Article would not apply, vide Unnai v. Kunchi Amma (1891) 11 Mad. 26 and Bachchan Singh v. Kamta Prasad (1910) 32 All. 392 at p. 395. The case which applies on all fours to the present case is Mohamad Baqar v. Mango Lal (1900) 22 All. 90. There during the continuance of a mortgage which contained a covenant against alienation of the mortgaged property, the mortgagor made a perpetual lease of that property. The mortgagee brought a suit on his mortgage and having obtained a decree put the mortgaged property up to sale. The auction-purchaser of the mortgaged property on becoming aware of the existence of the perpetual lease sued for the cancellation and for a declaration that the defendant had no tight to interfere with or obstruct the plaintiff in respect of the property in question. It was held that the limitation applicable to such a suit was that prescribed by Article 120, Schedule 2, Limitation Act, 1877, and not the prescribed Article 91 or Article 95. The main prayer of the plaint was for a decree declaring and establishing the plaintiff's title and the prayer for cancellation of the lease could be treated as merely subsidiary to the main relief asked. In this case also, the relief sought for by the plaintiff is for possession and the cancellation of the lease is to be regarded as merely subsidiary to the main relief. I am therefore of opinion that Article 91, Limitation Act, does not apply and Article 120 as held in Mohamad Baqar v. Mango Lal (1900) 22 All. 90, referred to above, would apply.

5. In this connexion there is another point which may be mentioned here. According to the argument of the learned Counsel the plaintiff is to be presumed to have notice of the registered lease, but there is nothing to show that the plaintiff knew within the last three years of the facts entitling him to have the instrument cancelled or set aside. I therefore find that Article 91, Limitation Act, does not apply and the suit is not time-barred. There is no force in the appeal. It is therefore ordered that it be dismissed with costs. Permission to file a Letters Patent appeal is granted.


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