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Mukhtar Ahmad and ors. Vs. Kabir Ahmad and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1924All856; 78Ind.Cas.666
AppellantMukhtar Ahmad and ors.
RespondentKabir Ahmad and ors.
Cases ReferredBarhamdeo Singh v. Bam Narain Singh
Excerpt:
construction of deed - sale certificate--conflicting descriptions--decree, whether map be referred to--civil procedure code (act v of 1908), section 47--dispute between judgment-debtor and auction-purchaser, nature of. - u.p. zamindari abolition & lands reforms act, 1951 [act no. 1/1951]. section 3(4) & u.p. land revenue act, (3 of 1901). sections 14-a (3) & 14; [s.rafat alam, r.k.agarwal & ashok bhushan, jj] expression collector- held, it includes additional collector. powers and functions of collector can be exercised by additional collector under section 198(4) of 1950 act, provided he has been so directed by collector of the district. [1996 aihc 3628 overruled]. - in this case the finding of the courts below is supported by the presumption that what the court intended to sell was..........her share in the mutation proceedings a compromise was entered into by which she was awarded a 7-pies share and the remaining 2-pies 3-krams i-jan remained in posess-sion of the heirs of zia-ul-haq. while zia-ul-haq was in possession of the entire property he had mortgaged 9-pies of it to one mukar-ram husain. mukarram husain filed a suit on his mortgage and obtained a decree for sale in respect of this 9-pies. in the meantime, there had been a partition of the property and the 9-pies 3-krants i-jan to which each of zaiban bibi's daughter was originally entitled became after the partition a share of 2-annas 9-pies 1-krant %-jan 11-tond. in the auction sale which took place in execution of mukarram husain's decree the property was purchased by the present appellants mukhtar ahmed and.....
Judgment:

Daniels, J.

1. The facts of this case are somewhat complicated and are stated in full in the judgment of the Court below. So far as they are necessary for the purposes of this appeal they are these.

2. One Musammat Zaiban Bibi owned a share amounting to 1-anna 6-pies 6-kwants B-jan in the village of Bharw'ari in the Allahabad District. She died in 1896 leaving two daughters, Salim-un-nissa and Eahim-un-nissa, as her sole heirs. Her brother-in-law, Zia-ul-haq, took possession of the entire property. Musammat Eahim-un-nissa filed a suit and obtained possession of her share of the inheritance namely 9-pies 3-krants i-jan, Mst. Salim-un-nissa did not file a suit but on Zia-ul-haq's death in 1902 she claimed her share in the mutation proceedings A compromise was entered into by which she was awarded a 7-pies share and the remaining 2-pies 3-krams i-jan remained in posess-sion of the heirs of Zia-ul-haq. While Zia-ul-haq was in possession of the entire property he had mortgaged 9-pies of it to one Mukar-ram Husain. Mukarram Husain filed a suit on his mortgage and obtained a decree for sale in respect of this 9-pies. In the meantime, there had been a partition of the property and the 9-pies 3-krants i-jan to which each of Zaiban Bibi's daughter was originally entitled became after the partition a share of 2-annas 9-pies 1-krant %-jan 11-tond. In the auction sale which took place in execution of Mukarram Husain's decree the property was purchased by the present appellants Mukhtar Ahmed and others. In the sale certificate the 9-pies share was correctly stated but it was incorrectly described as corresponding to 2-annas 9-pies 1-krant 2-jan U-tond which was really the equivalent of the entire 9-pies B-krants i-jan share as had existed formerly. The revenue of the share was, however, correctly given and was the revenue corresponding to the original 9-pies share which the Court was entitled to bring to sale under the decree. Both the Courts below have held that the words ' 2-annas 9-pies 1-krant 2-jan U-tond ' in the sale certificate are merely a misdescription due to a clerical mistake and that what really passed was the original share of 9-pies in respect of which the decree was granted. Two suits were brought, one by the heirs of Musammat Salim-un-nissa and the other by the heirs of Zia-ul-haq, against the representatives of the auction-purchasers to recover the difference of 3-krants 1-jan. In connection with these two suits three appeals were tiled to the Court below, two by the heirs of Zia-ul-haq and one by the defendants. The Court below has held that the frkrants and jan share belongs to the plaintiffs in the two suits in proportion to their share in the entire property. As between the two sets of plaintiffs there is no longer any controversy. The defendants have filed three connected appeals to this Court against the decrees passed by the Court below on the three appeals preferred to it.

3. Both suits were filed within twelve years of the date of the auction-sale so that no question of limitation arises.

4. Seven grounds are taken in the memorandum of appeal but the points which have been actually argued are three only. They are,

5. 1. That as the plaintiffs in the two suits were parties to the sale proceeding they are bound by the description of the property given in the sale certificate.

6. 2. That in any case their remedy was by application under Section 47, Civil Procedure Code and not by suit. If the remedy was by application under that section, it would now be time barred.

7. 3. That the heirs of Musammat Salim-un-nissa are estopped by reason of a Kabuliat executed by them in favour of the auction-purchasers in respect of ex-proprietary plots.

8. On the first question it appears to me clear law that where there are in the sale certificate two descriptions of the property which cannot be reconciled it is open to the Court to look at the decree in the suit and to determine which of those discription really governs the sale. This has been expressly held in a Calcutta case Barhamdeo Singh v. Bam Narain Singh 22 Ind. Cas. 280 : 19 C.L.J. 182. The same principle is laid down in Section 97 of the Evidence Act which says that where the language used applies partly to one set of existing facts and partly to another evidence may be given to show to which of the two it was meant to apply. In this case the finding of the Courts below is supported by the presumption that what the Court intended to sell was that which it was authorised by law to sell and there is no legal ground for disturbing that finding, which is clearly in accordance with the justioe of the case.

9. The second point is concluded against the appellant by the Full Bench ruling in Bhag-wati v. Banwari Lal 1 Ind. Cas. 416 : 81 A. 82 : 6 A.L.J. 71 : 5 M.L.T. 185 which has been followed in the recent case of Munna Lal' v. The Gallector of Shahyahanpur 74 Ind. Cas. 996 : 45 A. 96; (1928) A.I.R. (A.) 470, The dispute here, as learned Judge of the Court below points out, is not between the parties to the suit but between the judgment-debtors and their representatives the auction purchasers.

10. As regards the third point I have examined the Kabuliat in question. It says nothing whatever as to the extent of the share. It merely acknowledge the title of the auction-purchasers to specific sir plots in respect of which an ex-proprietary tenancy had arisen.

11. All the grounds of appeal which have been urged, therefore, fail and I dismiss the appeals with costs.


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