B DURGA PRASAD SETH Vs. OM PRAKASH

JUDGEMENT

(1.) This is a plaintiff's appeal from a decree of the learned Civil Judge of Bareilly dated 18 September 1935, which reversed a decree dated 26 March 1935 of the Haveli Munsif, Bareilly. The facts that have given rise to this litigation are as follows: One Laobhman Prasad, along with his sons, mortgaged certain zamindary property in mauza Raipura Girdhari Lal in favour of the plaintiffs Durga Prasad and Madan Mohan. On 20 August 1923, Lachhman Prasad, father of defendants 2 to 4, executed a permanent lease of certain plots which constituted his khudkasht cultivation, in favour of his own nephew Om Prakash, defendant 1. A few days later, on 30 August 1923, Lachhman Prasad applied for insolvency and was ultimately declared an insolvent. His entire property was taken possession of by the Official Receiver who sold it to the plaintiffs on 20 October 1932. The plaintiffs now come to Court with the allegation that Lachhman Prasad fictitiously executed the patta mentioned above in favour of his nephew, although he continued in possession of the same. The plaintiffs sued for possession of the plots covered by the patta. The learned Munsif decreed the suit, but as stated above the learned Additional Civil Judge on appeal reversed the decree of the Court of first instance.

(2.) The plaintiffs in their plaint have treated the defendant as a trespasser on the ground that the defendant did not acquire tenancy rights under the lease executed by Lachhman Prasad. It appears from the evidence that after the execution of the lease when the property was taken possession of by the Official Receiver, the defendant paid rent for the holding to the Official Receiver till 1932. It follows therefore that the defendant was treated as a tenant of the holding under the aforesaid lease for nearly nine years before the plaintiffs came on the scene. Under the circumstances, it is impossible to hold that the defendant is a mere trespasser and not a tenant. If the defendant is a tenant, the Civil Court will have no jurisdiction to eject him and the suit should have been filed in the Revenue Court. In Mt. Aziz Fatma V/s. Mukund Lal on more or lass similar facts-as involved in the present case, a Bench of this Court declined to eject the tenant. The facts of this case were that the zamindary shares of two brothers were put to sale in execution of a simple money decree and purchased by one Haji Muhammad Saleh Khan on 20 April 1925. At the time when that sale took place, another person, a mortgagee, had also-brought a suit in respect of this property. The mortgagee had obtained a final decree on 3 April 1925, and he in his turn put the property to sale. The former purchaser, Haji Muhammad Saleh Khan, had received notice of the impending sale on 2 September, 1925, and on 8 September Saleh Khan executed a lease of certain plots in favour of one Mohammad Ishaq for 20 years, at a favourable rate of rent. In July 1926 the property was-sold again in execution of the mortgagee's decree and was purchased by the plaintiff, who filed a suit for declaration that the lease in favour of Ishaq was fictitious and void, for possession of the plots covered by the lease and for damages. The learned Judges granted a declaration, but held that the defendant having been admitted to the occupation of the land could not be treated as a trespasser and he could be ejected only under the provisions of the Tenancy Act.

(3.) In another case reported in Maula Das Khan Radha Kauji a perpetual lease was executed by a mahant on favourable terms to the lessee. His successor challenged the authority of his predecessor to execute the perpetual lease. It was held that the late mahant had no right to execute a permanent lease, but as the defendant was in possession of the land under a lease executed by the then landlord, he could not be treated as a trespasser, and the suit for ejectment was dismissed. The position of the defendant in this case is identical, if not better. He was placed in possession of the plots in dispute by Lachhman Prasad and his sons who had full authority to execute the lease. The Official Receiver, who was in possession of the estate of Lachhman Prasad and his sons, accepted rent and treated the defendant as a tenant. Under these circumstances, I am not prepared to hold that the defendant is a mere trespasser. The learned Counsel for the appellants has referred me to several rulings in support of his contention that the defendant is a trespasser and the Civil Court has jurisdiction to eject him. It may be conceded that if the defendant is a trespasser, the Civil Court has certainly jurisdiction to eject him.