LALU DHIMAR Vs. SUDDANI BAI

JUDGEMENT

(1.) THE learned Judge of the lower appellate Court has discussed at some length the plea that the consent of the sole proprietor of a village to a transfer of an occupancy holding by a tenant to another person is a dealing with the property in the village such as is mentioned in Section 52, T.P. Act. The finding seems to be that the consent was an express waiver of the right to get it set aside and was therefore a dealing with the property of the kind prohibited by Section 52. That is obviously incorrect, but as the learned Judge himself says at the end of his discussion, the matter is irrelevant and the question does not arise in the case.

(2.) THE plaintiff's case was certainly meant to be based on Section 52, T.P. Act, as otherwise there was no necessity of mentioning that the suit against Rai Bahadur Singh had been instituted before the acquisition of occupancy rights by the defendant, whether from Deobati or Deoki Bai or from Rai Bahadur Singh. It was, however, actually based on Section 53 of that Act, but, even on the finding that Deoki Bai never was in fact a tenant of the land and the ostensible transfer by her with the consent of Rai Bahadur Singh was in reality a lease by the latter to the defendant Lalu Dhimar, the transaction could not be avoided unless it appeared that the defendant was a party to the fraud.

(3.) PRACTICALLY the whole of the rest of the evidence points to the conclusion that Rai Bahadur Singh did in fact create Deoki Bai a tenant of the 81' 92 acres of waste land in 1921. But the finding that he did not will not support the decree. If the lease of 1921 was a mere pretence between Rai Bahadur Singh and Deoki Bai, Lalu Dhimar, who took a transfer of 22 '40 acres of it in 1922 and 1923, certainly had every reason to believe that it was a real lease. There was a registered deed of lease and Deoki Bai was in possession, and further Rai Bahadur Singh consented to the transfer, that is to say, confirmed the genuineness of the lease. The suggestion that the ostensible granting of the lease of 82 acres of waste land to Deoki Bai in 1921 was a scheme to facilitate the grant of 22 acres of it to Lalu Dhimar in the following year is fantastically improbable, and anyhow it is quite impossible that Lalu should have known anything about it. His rights are therefore saved by the last clause of Section 53, T.P. Act.