NISAR HUSAIN Vs. SUNDAR LAL

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for ejectment. The plaintiffs and defendant 3, who formed a joint Hindu family, obtained a decree on the basis of a mortgage-deed for sale against Basharat Husain. While this decree was in execution Basharat Husain executed a lease, dated 29 September 1919, in favour of the father of Nisar Husain, defendant 1, for a period of 10 years. This lease comprised a number of khewats in three villages out of several, which were included in the mortgage. In 1921 the decree-holders purchased the mortgaged properties at auction and later obtained formal delivery of possession against the mortgagor. They have now brought this suit for ejectment of the lessee in the civil Court. The main defence of the lessee consisted of a plea that there was relationship between the parties of zamindar and lessee, and the civil Court has no jurisdiction to eject the defendant, and a further plea was that in view of certain proceedings in 1920 the present claim was barred. The learned Subordinate Judge has decreed the suit and the mortgagor and the lessee have appealed.

(2.) It appears that Piare Lal, defendant 3, had also a simple money decree against his mortgagor and executed it by attachment of the rents due from the tenants. Nasir Husain intervened and raised an objection under Order 21, Rule 58, Civil P.C., that he was in possession as a lessee and that the rents due from the tenants could not be attached by the decree-holder. On the 1 May 1920,the lessee's objection was allowed, it being held that the lease was not fictitious. The defendants contend that this order bars the present claim, inasmuch as no suit for a declaration that the lease was fictitious, was brought within one year of the order. In our opinion, the order is final only to the extent that the lease was not fictitious and was not a mere waste of paper. It cannot, however, prevent the plaintiffs from seeking to avoid the lease on the ground that it was executed during the pendency of their mortgage suit. It is obvious that in the proceedings relating to the execution of the simple money decree the present plaintiffs could not have avoided the lease on the ground of its being a pendente lite transfer. The order of the 1 May 1920, cannot, therefore, be a bar so far as the avoidance of the lease on this last mentioned ground is concerned.

(3.) Although a defendant in a mortgage suit has power, so long as he retains his possession, to grant leases in the ordinary course of management of his property, he cannot make transfers to enure beyond the time when the property passes by sale to his mortgagees. Such a transfer if made, can undoubtedly be avoided under Section 52, Transfer of Property Act. The point which the Court below had to consider first was whether the suit related to an agricultural holding, for if it did, then the defendant lessee, having pleaded that he was a tenant of the plaintiff, the Court was bound to proceed under Section 202, old Agra Tenancy Act. The lease in question was not a lease of any fractional undivided shares in villages, in which case the lessee can merely collect rents from joint tenants. It was a lease of specific complete khewat numbers, with areas and Government revenues separately specified, and the lessee was expressly given power to cultivate the lands himself or to have them cultivated by the other tenants. When specific areas are leased and express power is given to the lessee to take actual possession of those areas and he has the option to cultivate them himself, it is difficult to hold that the lease is not for agricultural purposes. The document does not in any way suggest that the lease was granted for any non-agricultural purpose. The form of the document is the ordinary form of leases which may be granted by a zamindar to tenants of specific plots. These khewat lands are undoubtedly agricultural lands. A holding was defined as a parcel or parcels of land held under one tenure engagement or one lease, and land was defined as land which was let or held for agricultural purposes. We, therefore, find it very difficult to agree with the Court below that the lands under the lease did not constitute an agricultural holding. It follows that it was incumbent on the Court below to proceed according to Section 202.