LAWS(PVC)-1922-6-73

DURGA CHOWDHURI Vs. JAGROOP

Decided On June 23, 1922
DURGA CHOWDHURI Appellant
V/S
JAGROOP Respondents

JUDGEMENT

(1.) Musammat Lagha had an occupancy holding which she mortgaged with possession in favour of the defendant in lieu of Rs. 99 on the 12 September 1907. The mortgage remained in possession of the holding without any objection having been taken to the said mortgage by the proprietors of the village. The present suit has been filed by the plaintiffs for possession of the occupancy holding. In the plaint they offered to pay Rs. 99 to the defendant. The contention of the defendant was that as the mortgage was invalid his possession was adverse and that the claim was consequently barred by limitation.

(2.) The Courts below held that the possession held by the defendant was permissive and that though the mortgage was invalid the plaintiffs were entitled to get possession of the occupancy holding.

(3.) The learned Counsel for the defendant-appellant contends that the defendant is entitled to retain possession of the occupancy holding because he has since purchased a proprietary share in the village. But the purchase would not clothe him with a higher position than that which he occupied when he was originally let into possession of the holding by the mother of the plaintiffs. The occupancy holding has not become extinct, because no step was taken by the landlord to eject the plaintiffs or their mother from the holding by reason of that transfer, under Section 57 (d) of the Agra Tenancy Act (II of 1901). The execution of an illegal transfer does not ispo focto terminate the interest of a tenant. The landlord must sue to eject him and till such ejectment is claimed and decreed the tenancy continues. If, before, such ejectment is sought, the illegal transfer is cancelled or comes to an end by voluntary redemption or otherwise, the tenancy would continue to subsist.