PHOOL SINGH Vs. MUSSAMMAT GOBIND KOER

JUDGEMENT

(1.) This is an unfortunate case, on the facts found. The plaintiff was the minor son of one Gitam Singh, During his minority his father granted a perpetual lease of certain agricultural land on terms highly favourable to the lessee and unfavourable to himself. It seems to have been also found by two Courts that undue influence was used by two of the defendants in obtaining this lease from the plaintiff's father. After the death of his father the plaintiff, acting through his next friend, endeavoured to obtain from the Revenue Court the ejectment of the defendants, admitting them to be his tenants but claiming that they had no higher right than those of tenants at will. When this lease was set up the attempt at ejectment in the Revenue Court failed. The plaintiff then brought the present suit asking for a declaration that the lease is not binding upon him, either on the ground that it was obtained by undue influence exercised upon his father, or, even if that plea should fail, on the ground that it amounted under the circumstances to an alienation of joint ancestral family property in the hands of the plaintiff's tether, which the latter was not competent by law to make. Two Courts found in favour of the plaintiff on all points and granted him the declaration prayed for.

(2.) There was a second appeal to this Court and in this appeal the first two points taken related to the question whether the land covered by the lease was joint ancestral property and whether there had been a clear finding on the question of undue influence. On the first point the learned Judge of this Court held that there was a finding of fact in favour of the plaintiff. At any rate, the learned Judge found definitely that the property in dispute was ancestral property, belonging jointly to the plaintiff and to his father. On the second point the learned Judge of this Court held that the finding of the lower Appellate Court, to the effect that the terms of the lease were clearly prejudicial to the plaintiff's interests was sufficient in itself to make the contract of lease voidable at the plaintiff's instance.

(3.) There was, however, taken in this Court a further point which had been overruled in the two Courts below. This was based on the proviso to Section 42 of the Specific Relief Act; that is to say, it was contended that the plaintiff ought in this present suit to have claimed the ejectment of the defendants and actual possession over the disputed land. The two Courts below had discussed this point, but had come to the conclusion that there had certainly been an agricultural tenancy in favour of the defendants and the latter could only be ejected by a proceeding in the Revenue Courts, and that consequently the proviso to Section 42 of the Specific Relief Act had no application inasmuch as the plaintiff could not have sought relief by way of ejectment from the Civil Court in which this suit was instituted. On this ground alone the learned Judge of this Court reversed the decision of the lower Appellate Court and dismissed the plaintiff's suit.