B LALLO SINGH Vs. JAMNA PRASAD

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for possession of two plots. Harihar Prasad, the uncle of the plaintiff, executed a perpetual lease on 18 May 1918 in respect of the two plots in suit in favour of the defendant-respondent, the latter being given the right to build a house, to construct a well, to plant trees and to lay out a garden on the aforesaid plots. The plaintiff was at that time a minor. After attaining majority the plaintiff instituted the suit for possession out of which this appeal arises, alleging inter alia that the lease had been executed without any legal necessity by his uncle and that it was void, ineffectual and inoperative as against him. The defence was that the suit was time-barred, that the defendant was a tenant of the plaintiff and therefore the suit was not cognizable by the Civil Court, that the lease was executed for legal necessity, that the property had been improved and constructions had been erected at a cost of Rs. 10,000 or Rs. 15,000 and that it was not open to the plaintiff to claim possession.

(2.) The trial Court found in favour of the plaintiff on the issue regarding limitation. As regards the question of tenancy, the trial Court referred the matter to the Revenue Court purporting to act under Section 273, Tenancy Act; and the Revenue Court found that the defendant was, in fact, a tenant of the plaintiff. As regards legal necessity, the trial Court was of opinion that this issue did not arise. In the result, it dismissed the suit. The learned Judge of the lower Appellate Court finds that since there was no agricultural lease, the trial Court acted irregularly in referring an issue under Section 273, Tenancy Act. He then proceeded to find that the suit was incompetent without a prayer for cancellation or avoidance of the lease; and in the absence of such prayer the learned Judge dismissed the appeal.

(3.) The only question which has been argued before me in this second appeal is whether the plaintiff was or was not entitled to sue for possession without also praying for cancellation or avoidance of the lease. The learned Judge of the lower Appellate Court has relied on the decision in Aziz-un-nissa V/s. Siraj Husain (1931) 21 AIR All 507 and also on the observations of the Court in Basdeo Narain v. Mohammad Yusuf . But both those cases are distinguishable. In the last-named case there was a lease of agricultural land, whereas in the case which is now before me there is a finding that the lease was not agricultural; and therefore the analogy of Section 45, Tenancy Act of 1926, which was there invoked, is inapplicable. In Aziz-un-nissa V/s. Siraj Husain (1931) 21 AIR All 507, the plaintiff was claiming through the alienor. In the case now under appeal the plaintiff and the alienor, who is his uncle, were members of a joint Hindu family. The plaintiff does not derive his title through the alienor, but has an independent title of his own. It is true that the alienation by his uncle was capable of ratification unless of course it is a valid alienation by reason of legal necessity-and was therefore not void ab initio; but this fact per se will not necessitate a prayer for cancellation. In Bijoy Gopal Mukerji V/s. Krishna Mahishi Debi (1907) 34 Cal 329, the plaintiffs sued as reversioners for possession of property which had been transferred on lease for 60 years by the late owner's deceased widow. Their Lordships of the Privy Council held that the plaintiffs were entitled to sue for possession, treating the alienation as a nullity. At p. 333 they say: A Hindu widow is not a tenant for life but is owner of her husband's property subject to certain restrictions on alienation and subject to its devolving upon her husband's heirs upon her death. But she may alienate it subject to certain conditions being complied with. Her alienation is not therefore absolutely void, but it is prima facie voidable at the election of the reversionary heir. He may think fit to affirm it, or he may at his pleasure treat it as a nullity without the intervention of any Court, and he shows his election to do the latter by commencing an action to recover possession of the property. There is, in fact, nothing for the Court either to set aside or cancel as a condition precedent to the right of action of the reversionary heir. It is true that the appellants prayed by their plaint a declaration that the ijara was inoperative as against them, as leading up to their prayer for delivery to them of khas possession. But it was not necessary for them to do so, and they might have merely claimed possession, leaving it to the defendants to plead and (if they could) prove the circumstances which they relied on for showing that the ijara or any derivative dealings with the property were not in fact voidable but were binding on the reversionary heirs.