HATTIKUDUR NARAIN RAO Vs. ANDAR SAYAD ABBAS SAHIB

JUDGEMENT

(1.) The plaintiffs represent the interests of the mulgeni tenants who obtained a mulgeni lease in 1862 from the predecessor-in-title of the defendant who is the purchaser from the purchaser of the mul right from the original landlord. The lands leased to the plaintiff s father consisted of several items. The small extent now in dispute is alleged by the plaintiffs to be a part of the lands leased on mulgeni right while the defendant denies it. The defendant obtained this small extent of land now in dispute on dharkast grant from the Government in 1911 and is in possession of it. The first plaintiff s contention is that he and his father had been in possession of it along with the other mulgeni lands till September 1911 and that the defendant on the strength of the dharkast grant dispossessed the plaintiff in 1911. The defendant s case is that the plaint lands were not included in the mulgeni grant and that in any view, the lands having belonged to the Government, the defendant is entitled to possession of them as against his lessee after he (the defendant) obtained it from the real owner, the Government.

(2.) The District Munsif held that the plaint lands were included in the old mulgeni lease of 1862 and he further held that by virtue of Section 43 of the Transfer of Property Act, the mulgeni right will attach to the plaint plot also in favour of the first plaintiff not withstanding that the plaint land did always belong to Government and was granted to the defendant in August 1911. The District Munsif therefore decreed the plaintiff s suit.

(3.) On appeal, the learned Subordinate Judge without deciding the question whether the plaint land was included in the old mulgeni lease held that Section 43 of the Transfer of Property Act did not apply so as to give the first plaintiff a right to hold the plaint land on mulgeni lease and that the first plaintiff cannot claim such right on the strength of any other rule of law. He therefore dismissed the plaintiffs suit with costs. The contention in second appeal is that both under Section 43 of the Transfer of Property Act and on general principles of estoppel, the first plaintiff is entitled to a mulgeni right over the plaint land. (Of course, if the 1st plaintiff succeeds in this legal contention, the case would have to go back to the Subordinate Judge as the learned Subordinate judge has not decided the question whether the plaint land was included in the old mulgeni lease).