MANOHAR LAL Vs. SUNDER LAL

JUDGEMENT

(1.) THE defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below whereby the suit for declaration to the effect that the order passed by the Collector dated 29.12.1980 is illegal, null, void and ineffective and that the plaintiffs were entitled to possession of suit land measuring 10 kanals 11 marlas after redemption of the suit land.

(2.) IT is the case of the plaintiffs that Shankar Lal, predecessor-in-interest of the plaintiffs was Dholidar. He mortgaged the land measuring 10 kanals 11 marlas with defendant on 4.4.1954 for consideration of Rs. 1,000/-. Earlier plaintiff filed an application for redemption of the suit land which was declined by the Collector and, therefore, the suit.

(3.) THE trial Court held that Shankar Lal, Dholidar of the suit land was competent to let, mortgage or sell the land to any person and, therefore, order of Collector dated 29.12.1980, Ex., P-3 holding that Dholi tenure is unalienable cannot be sustained. The trial Court also did not find any merit in issue raised by the defendant that the defendant is in cultivating possession of the suit land for last more than 40 years on the basis of Khasra girdawari, Ex. D-4 wherein the defendant is recorded in cultivating possession sine Khariff 1954 i.e. June 1954. Thus, it was held that defendant was not a tenant prior to mortgage and, therefore, not entitled to seek protection under Section 17 of the aforesaid Act. However, in appeal, the First Appellate Court reversed the finding of the trial Court and held that Dholi tenure was not alienable. The reliance was placed by the First Appellate Court upon the judgment of Allahabad High Court reported as Siri Ram v. Thakur Dhan Bahadur Singh, AIR 1965 Allahabad 223. The First Appellate Court maintained the decree for possession on the ground that the plaintiffs may not be Dholidar, mortgagor but as Dholidar owner is entitled to possession from the defendant. The defendants are in permissive possession under the plaintiffs. However, the First Appellate Court maintained the finding that the possession of the defendant is not that of tenant and, therefore, the defendant is not entitled to protection conferred under Section 17 of the Act.