SHYAM LAL Vs. BUDH SEN

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for a declaration that the defendant had no interest in the village of Nurpur and for damages on account of breach of contract. Shyam Lal plaintiff, was the owner of some zamindari in two villages, Dewaichi and Nurpur, Both these properties were put up for sale in execution of a decree and Budh Sen, defendant, purchased them at auction for Rs. 21,000. The decree for which execution had been taken out was for Rs. 19,968 and thus there was a balance of Rs. 1032 in the hands of the defendant. The sale was confirmed on 25 July 1926 but before its confirmation, i.e., on 14 July 1926, the plaintiff and the defendant entered into an agreement. The terms of that agreement were that the property in Nurpur was to be re-transferred by a deed of exchange to the plaintiff and the defendant was to keep the property at Dewaichi. The plaintiff was also to give up 3 or 4 groves and a house and he also agreed to relinquish his ex-proprietary rights in the village of Dewaichi.

(2.) The Court of first instance decreed the plaintiff's suit for declaration and also for recovery of damages in the amount of Rs. 799-5-3. The lower appellate Court has allowed the appeal and has dismissed the suit on two grounds. One of those grounds apparently is that the suit ought to have been one for specific performance of contract and the other ground was that the transfer of ex- proprietary rights was illegal. Counsel for the plaintiff-appellant pleads that the view taken by the Court below as regards the illegality of the transfer of ex- proprietary rights is wrong.

(3.) This case is governed by the Tenancy Act of 1901, and not by the Tenancy Act of 1926. Other things being equal and in the absence of special circumstances, the relinquishment of ex-proprietary rights was not under the Act of 1901 illegal. A Bench of this Court in Lekhraj V/s. Parshadi (1909) 2 I.C. 409 held that: Upon the sale of the zamindari the vendor becomes an ex-proprietary tenant in respect of his sir land, and he is competent to surrender his holdings in favour of the vendee. Upon such surrender his rights as an ex-proprietary tenant determine, and if he subsequently dispossesses the vendee landlord, the latter is entitled to be put back into possession.