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Tolai Misir and ors. Vs. Muneshar Koeri - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in84Ind.Cas.115
AppellantTolai Misir and ors.
RespondentMuneshar Koeri
Excerpt:
agra tenancy act (ii of 1901), section 10 - mortgage, of sir lands--ex--oprietary tenancy--abandonment. - 1. this was a suit for possession on the ground that the plaintiff was in possession of the plots in suit under a usufructuary mortgage and has been wrongfully dispossessed by the defendants. in the year 1914 the defendants executed a usufructuary mortgage in favour of the plaintiff of certain sir and khudkasht plots. this transaction was not in itself illegal but upon its execution there arose in favour of the defendants by operation of law, an ex-proprietary tenancy in the sir plots. the defendants did not, however, claim this tenancy. they allowed the plaintiff to take actual possession of the land without opposition and the plaintiff remained in possession for six years. in the year 1920 the defendants paid up a portion of the mortgage money and by agreement with the plaintiff took.....
Judgment:

1. This was a suit for possession on the ground that the plaintiff was in possession of the plots in suit under a usufructuary mortgage and has been wrongfully dispossessed by the defendants. In the year 1914 the defendants executed a usufructuary mortgage in favour of the plaintiff of certain sir and khudkasht plots. This transaction was not in itself illegal but upon its execution there arose in favour of the defendants by operation of law, an ex-proprietary tenancy in the sir plots. The defendants did not, however, claim this tenancy. They allowed the plaintiff to take actual possession of the land without opposition and the plaintiff remained in possession for six years. In the year 1920 the defendants paid up a portion of the mortgage money and by agreement with the plaintiff took possession of so much of the land as corresponded to the amount paid up. They also, however, according to the allegations in the plaint which are not now disputed, dispossessed the plaintiff of the remaining portion of the land. The defendants appellants contend that to allow this suit would be to defeat the policy of the law which forbids any covenant which has the effect of depriving the vendors of the benefit of ex-proprietary rights which arise in their favour. On the facts as they now stand this is not we think the correct way of looking at the matter. The ex-proprietary rights certainly arose in favour of the defendants, but it was open to them to abandon them. Under the circumstances set forth above, they must be considered to have done so. The plaintiff is, therefore, entitled to be restored to possession and we dismiss this appeal with costs including in this Court fees on the higher scale.


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