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Shaikh Sajjad HusaIn Vs. Shaikh Wali Muhammad and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All451; 73Ind.Cas.1030
AppellantShaikh Sajjad Husain
RespondentShaikh Wali Muhammad and anr.
Excerpt:
agra tenancy act (ii of 1901), section 22 - succession to holding--'sharing in cultivation,' meaning of. - - this ground of appeal must also fail. in case of subletting the tenant himself could not be said to cultivate the plots and if the tenant was not himself in cultivation nobody could be said to share it with him, and, as here, the land was admittedly let out to the sub-tenants, tie plaintiff's claim on the ground that he shared in the cultivation of the holding at the time of the tenant's death must fail. the plaintiff is consequently not an heir to the ex-proprietary tenancy and his suit on that ground must fail......pleaded that they were in possession as donees, that is, in proprietary possession. this ground of appeal must also fail.8. as to the remaining point, namely, if the plaintiff shared in the cultivation with his late maternal grandfather, this is a point not covered by any authority of this court and is one of first impression. reading the proviso as it stands and giving the words their natural meaning, it would appear that a daughter's son or a collatera-could only inherit if he shared in the cultivation of the holding at the time of the tenant's death. i take those words to mean actual cultivation. in case of subletting the tenant himself could not be said to cultivate the plots and if the tenant was not himself in cultivation nobody could be said to share it with him, and, as.....
Judgment:

Gokul Prasad, J.

1. It appears that one Tajammul Husain owned a one-anna-six-pie Zemindari share and was in cultivatory possession of certain plots of sir land. He made a gift of one-anna-two-pie share to Wali Muhammad, Musammat Butan Bibi and Musammat Majidan Bibi. The defendant, Tufail Ahmad, is an heir of Musam-m%t Majidan Bibi. Later on, he sold the remaining four-pie share to Ali Kibir and thus became an ex-proprietary tenant of the plots of sir appertaining to that share. He alleged that the defendants were subtenants of the plots appertaining to the aforesaid share and sued for their ejectment. In all, there were five suits by the plaintiff, Sajjad Husain, who claimed title as a daughter's son of the late Tajamnml Husain. The suits related to various plots of sir land. The suits were Nos. 321 to 325 of 1916.

2. The defence pleaded was that the plaintiff was not an ex-proprietary tenant and that no relation of landlord and tenant subsisted between the parties.

3. The Trial Court found for the plaintiff on both the issues and decreed the claim.

4. The defendants in all these suits except Suit No. 323 of 1916 went up in appeal to the Commissioner. The Commissioner however, returned the memoranda of appeal for presentation to the proper Court on the 30th of August 1917 having come to a conclusion that the question of proprietary title was involved in the appeals. On the 1st of September 1917 the appeals were filed in the District Judge's Court and then the District Judge dismissed all the four appeals there being no appeal from Suit No. 323 of 1916, as I have stated above, on the ground that they were barred by limitation. There was a second appeal to this Court and this Court came to the conclusion that the learned District Judge should not have dismissed the appeals summarily but should have gone on and found as a fact whether sufficient cause had been Made out for admitting the appeals after the expiry of the period of limitation. The learned Judge of the lower Appellate Court has found that the appeals were filed before the Commissioner because of the mistaken advice of the lawyers and that the appeals were so filed bona fide, and there was sufficient cause for extending, the period of limitation. He had some doubts in his own mind about the question whether the appeals really lay to him. He has,_ however, gone on to find on all the points raised before him and has decreed the appeals and dismissed the plaintiff's claim.

5. The plaintiff comes here in second appeal and raises three points, (1) that no appeal lay to the District Judge as no question of proprietary title was raised in the appeal; (2) tint the plaintiff shared in the cultivation of the holding with his maternal grandfather, Tajammul Husain, and was as such competent to bring the present suit, and (3) that the appeal in the Court below was barred by the rule of res judicata, inasmuch as the judgment of the Assistant Collector in Suit No. 323 of 1916 in which no appeal had been preferred to the Judge became final and concluded the defence.

6. As to the last point I may dispose of it shortly. There are not sufficient materials on the record to enable me to decide this question and it is too late to send for those records now.

7. As to the point that no appeal lay to the District Judge, it is too late now to raise this question. It would appear from ground No. 5 of the grounds of appeal before the lower Appellate Court that question of proprietary title was raised before the District Judge. The plaintiff wanted to eject the defendants on the ground that they were his sub-tenants and the defendants pleaded that they were in possession as donees, that is, in proprietary possession. This ground of appeal must also fail.

8. As to the remaining point, namely, if the plaintiff shared in the cultivation with his late maternal grandfather, this is a point not covered by any authority of this Court and is one of first impression. Reading the proviso as it stands and giving the words their natural meaning, it would appear that a daughter's son or a collatera-could only inherit if he shared in the cultivation of the holding at the time of the tenant's death. I take those words to mean actual cultivation. In case of subletting the tenant himself could not be said to cultivate the plots and if the tenant was not himself in cultivation nobody could be said to share it with him, and, as here, the land was admittedly let out to the sub-tenants, tie plaintiff's claim on the ground that he shared in the cultivation of the holding at the time of the tenant's death must fail. The fact that the plaintiff has succeeded in a civil matter on the ground that he was the heir of his maternal grandfather is beside the question. The point before me is not that the plaintiff was the heir of his maternal grandfather, but that he was not an heir of his maternal grandfather, so far as his ex-proprietary rights were concerned. The plaintiff is consequently not an heir to the ex-proprietary tenancy and his suit on that ground must fail. The suit has been rightly dismissed, and I dismiss the appeal with costs.


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