SUKHAN SINGH Vs. UMA SHANKAR MISIR

JUDGEMENT

(1.) These two appeals arise opt of proceedings under Section 144, Civil P.C. The appellants objected to restitution being made under Section 144, Civil P.C., to a lady named Chandrajota Kunwar, so far as it was claimed in denial of the appellants rights as statutory tenants. The lower Court dismissed the appellants objection and delivered actual possession of the lands in dispute to Mt. Chandrajota Kunwar. It appears that the Collector of the Benares, who was in charge of the estate known as Sakaldiya estate, instituted a suit, against Mt. Chandrajota Kunwar for setting aside an agreement and for possession of property of which the lands now in dispute were parts. It is not necessary to enter into the details of the controversy between the parties to that suit. Suffice it to say, that it was a suit for inter alia, the relief of possession against Mt. Chandrajota. The suit was decreed by the Court of first instance on 17 March 1930, and possession was delivered to the Collector on 26 May 1930. Chandrajota preferred an appeal to this Court, which reversed the decree of the Court of first instance on 5th September 1933, and dismissed the Collector's suit. Mt. Chandrajota then applied for restitution under Section 144, Civil P.C., praying for delivery of possession of the property which had been taken possession of by the Collector in execution of the decree of the first Court, since reversed by the High Court. She impleaded in her application the present appellants who claimed to be tenants admitted by the Collector in the interval after delivery of possession to him before the decision of the High Court.

(2.) It is not disputed that the lands now in dispute were originally cultivated by certain tenants who were actually in possession when the Collector took delivery of possession. It is mentioned in the judgment of the learned Sub-Judge that those tenants were dispossessed and the officials of the Court of Wards let the lands to the appellants at lower rents. The learned advocate for the appellants has referred me to the statement of the patwari, who says that the original tenants themselves relinquished the lands in dispute and thereupon the officials of the Court of Wards let the lands to the appellants. In my opinion it makes no appreciable difference if the case is decided on the assumption that the out-going tenants had voluntarily relinquished the land, which was subsequently let to the appellants by the officials of the Court of Wards. The appellants claim that Mr. Chandrajota Kunwar is not entitled to actual possession as against them, as they became statutory tenants under Section 19, Agra Tenancy Act, because they were admitted as tenants by the Collector, who was then in possession as proprietor. The principal question between Mt. Chandrajota and the appellants in the lower Court was whether they were statutory tenants, as claimed by them; if not, Mt. Chandrajota's right to take actual possession can hardly be said to be in doubt.

(3.) Section 144, Civil P.C., makes it imperative, where a decree passed by the Court of first instance is reversed on appeal that the Court should place the winning party in the position which he or she would have occupied but for such decree. Mt. Chandrajota is entitled to have her land restored to her free from all encumbrances, including any tenancy that might have been created in the meantime by the party who was successful in the first Court but eventually was found to have no title to the land. Restitution under Section 144 can be claimed not only against the opposite party, but also his representatives or persons deriving title from him. The terms of Section 144 present no difficulty to my mind and I have no hesitation in holding that, unless Section 19, Agra Tenancy Act, on which reliance is placed by the learned advocate for the appellants, leads to a different conclusion, Section 141, Civil P.C., in terms applies to the facts of this case.