MOTI CHAND Vs. IKRAM ULLAH KHAN

JUDGEMENT

(1.) THIS is an appeal from a decree, dated May 24, 1911, of the High Court of Judicature at Allahabad, which set aside a decree of the Subordinate Judge of Azamgarh and dismissed the suit of the plaintiffs. The suit was brought to recover damages for an alleged breach by the defendants of an agreement contained in a sale deed of May 2, 1903, by which the defendants had agreed to execute and file a deed of relinquishment of their rights in their sir lands in mauzas Khorant, Daulsapur, and Bharthipur, in the district of Azamgarh. The mauzas in question are mahals within the meaning of the North-Western Provinces Tenancy Act, 1901 (Act II. of 1901).

(2.) THE defendants, who were the proprietors within the meaning of that Act of mauzas Khorant, Daulsapur, and Bharthipur, and had in those mauzas considerable sir lands in their occupation to which the Act applied, by their deed of May 2, 1903, transferred by sale to the plaintiffs the three mauzas and all the rights appertaining to the zamindari property. By the deed the defendants also purported to sell to the plaintiffs the zamindari property "together with sir and khudkasht lands, and ex-proprietary tenancy right without the exception of any thing or right"; declared that "we, the executants, have relinquished our claims and interest in respect of all the sir and khudkasht lands"; and agreed that "we shall execute a deed of relinquishment of claim in respect of the sir lands, and shall file an application surrendering the holding. If we should make a delay in or take any objection to the filing of an application surrendering the holding or to the execution of the deed of relinquishment of claim in respect of the sir lands, or should we, the executants, our heirs or representatives or successors, keep in our possession any portion of the sir and khudkasht lands, then we and our heirs and representatives and successors shall pay damages in respect thereof at the rate of Rs. 16 per bigha. In case of nonpayment, the vendees shall have power to bring a suit in a competent Court and to realize the amount of damages at the above rate from the person and property of us the executants, and our heirs and representatives and successors. We, the executants, shall have no objection to pay it."

(3.) ON May 5, 1903, and in pursuance of the agreement in that respect contained in the sale deed of May 2, 1903, the defendants executed a deed of relinquishment in favour of the plaintiffs of their claim and right in all their sir lands in the three mauzas; they, however, refused to file the deed of relinquishment in the Revenue Court, and on July 14, 1903, refused to quit possession of the sir lands, of which they have since then continued in possession as ex-proprietary tenants. In respect of that refusal to file the deed of relinquishment or to quit possession of the sir lands this suit for damages was brought in the Court of the Subordinate Judge of Azamgarh on July 3, 1909. The damages claimed were at the rate of Rs. 16 per bigha, amounting to Rs. 9468.8, with interest thereon at the rate of 8 annas per centum per mensem from July 14, 1903, to July 3, 1909. The total amount of the claim, including interest, was Rs. 12,837.5.9.