ISHUR DAS Vs. CHIRONJI LAL

JUDGEMENT

(1.) In this suit it is clear that the plaintiff-appellant has not been fairly treated. In 1904 he purchased what were apparently full proprietary rights in the land in suit, which was called in the sale-deed a grove. There is no evidence to show that he has lost his rights either by voluntary transfer or by operation of law, or, in any other way. He was dispossessed by the defendant respondent in 1922, and when he tried to assert his rights in Court, the revenue Courts would not help him because they said he was not an occupancy tenant, and in the present proceedings the civil Courts have refused to come to his aid because they have held that he is suing as an occupancy tenant and is barred by Section 73, Tenancy Act.

(2.) It is necessary for the sake of clearness to re-state the facts somewhat fully. In 1904, the appellant bought the land in suit from the zamindar Mr. Gardner. The sale-deed is on the file. The land is described as a grove, being part of the zamindari of Mr. Gardner. The conveyance is stated to be: an absolute sale of the whole of the said grove together with the site thereof and... trees standing thereon and all the rights and interests appertaining to the said grove.... I have put the vendee in proprietary possession of the grove sold in my place and I have severed all my connexions with it in favour of the vendee.... The said vendee should consider himself to be the permanent owner of the grove sold and remain in proprietary possession thereof and exercise all proprietary powers.

(3.) I have thought it necessary to quote from the deed at some length because the construction of the deed by the lower appellate Court is that the plaintiff appellant had occupancy rights in the plot in suit at the time after the sale, in spite of the facts that full proprietary rights had been transferred and that the land was undoubtedly at that time a grove. Although the fact was concealed in the sale- deed the whole of the vendor's zamindari was subject to a mortgage held by one Buldeo. The mortgagee brought a suit for sale in 1910 and made the present appellant a party to the suit, presumably on the ground that he was a subsequent transferee of a part of the mortgaged property. The appellant made objections to the sale in regard to the grove purchased by him, and in the decree which was obtained by the mortgagee this area was exempted from sale. The order of the Subordinate Judge was: his occupancy rights in the area sought to be sold shall not be affected by the sale.