TAHAD ALI KHAN Vs. SHEIKH ISRAR ULLAH

JUDGEMENT

(1.) This is an appeal by a person who was impleaded as defendant 1 in the action which was brought by respondent 1. The action was one in ejectment and a decree has been passed in favour of the plaintiff-respondent 1. The material facts, which are not in dispute, are these. One Qurban Ali had two sons, Ibrahim and Ismail. Qurban Ali had certain zamin-dari property which, on his death, was inherited by Ibrahim and Ismail in equal shares. Ibrahim died leaving a widow, Mt. Eabia Bibi, two minor sons, Anwar Ullah andlsrar Ullah, and three daughters, one of whom, Mt. Abida, has assumed the role of next friend of the infant plaintiff, Israr Ullah, in this action. It appears that the three daughters of Ibrahim relinquished their rights of inheritance in their father's property in favour of their mother and brothers. In the other branch, Ismail died leaving a son, Mohammad Shakir, and a daughter, Mt. Zubaida, and some other daughters who do not appear to have claimed any share in the inheritance. The position by the year 1925 was that in all the zamindari property which had descended from Qurban Ali, Mt. Eabia Bibi and her two minor sons, Anwar Ullah and Israr Ullah, were owners to the extent of half and the other half was owned by Mohammed Shakir and his sister, Mt. Zubaida. In this zamindari, there are two plots of agricultural land, Nos. 53/1 and 95, the former measuring 13 biswas 5 dhurs and the latter 15 biswas 15 dimes, the total being 1 bigha 9 biswas. In the Fasli year 1332, which corresponds to 1924-25, the agricultural tenant who was occupying these two plots of land for purposes of cultivation as a tenant of the zamindars died without leaving any heirs who could succeed to the tenancy in accordance with the provisions of the Tenancy Act. The zamindars therefore took possession of the plots of land. On 6 October 1925, Mt. Rabia, in her own right and purporting to act as the guardian of her minor sons, Anwar Ullah and Israr Ullah, and Mohammad Shakir, executed a deed of perpetual lease in favour of the appellant. The document recites that the executants were in possession of the plots in question as proprietors, that Tahad Ali, had expressed a desire to take the plots on lease, that Tahad Ali had paid to the executants a sum of Rs. 350 as nazrana and that in consideration thereof and of a rent of Rs. 4 being paid per annum, the executants wore executing the lease. The lessee was given the right either to cultivate the land or to build a house or to plant trees. The power to transfer his rights under this document was also given to the lessee. Subsequently, on 6 April 1926 Mohammad Shakir, who, as stated above, had already joined in the execution of the lease of 6 October 1925 along with his sister, Mt. Zubaida, executed another deed of lease in respect of the same plots of land in favour of the appellant. The nazrana paid under this document to Mohammad Shakir and Mt. Zubaida was Rs. 190 and the annual rent payable to these two executants was fixed at Rs. 2. In other respects the document was similar to the one of 6 October 1925. It is common ground that Tahad Ali was let into possession of these two plots of land and has been in possession ever since and has been regularly paying rent.

(2.) As stated above, this suit was brought by Israr Ullah, who is still a minor, with his sister, Mt. Abida Bibi, as next friend, for possession of the plots on the ground that Mt. Rabia Bibi, the plaintiff's mother, bad no right to transfer any portion of the property belonging to the plaintiff. It may be mentioned here that it was common, round, in the Courts below that the correct number of one of the plots of land leased was 53/1 and not 33 as shown in the document dated 6 October 1925. Three other persons wore impleaded as defendants 2, 3 and 4 along with Tahad Ali Khan as the defendants of the first party. It does not appear what justification there was for ii uploading these three persons and the learned Counsel for the plaintiff-respondent has not justified their being impleaded in this suit. The appellant, Tahad Ali, contested the suit on various grounds. One of the pleas taken by Tahad Ali in his written statement was that the relation of a tenant and zamindari exists between the parties and that accordingly the Civil Court had no jurisdiction to entertain the suit and to grant the relief prayed for. One of the issues framed in the trial Court was : "Whether the defendant No. 1 is a tenant of the plaintiff?"

(3.) In accordance with the provisions of the Agra Tenancy Act (3 of 1926), which was the Act in force at the time of the institution of the suit in 1931, that issue was referred to the Revenue Court for decision. The Revenue Court tried that issue and held that the plea raised by the defendant, Tahad Ali, was well-founded. Among the persons examined before the Revenue Court were Anwar Ullah, the elder brother of the plaintiff, who by that time had attained majority, and Mohammad Shakir. There were also receipts of rent produced before the Court. It was admitted by Anwar Ullah and Mohammad Shakir that the appellant Tahad Ali had all along been in possession as a tenant and had been regularly paying rent to the zamindars. Taking all the evidence into consideration, the learned Assistant Collector held, as stated above, that the relationship of landlord and tenant between the plaintiff and the defendant Tahad Ali was established. On receipt of this finding from the Eevenue Court, the learned Munsif dismissed the suit. The plaintiff appealed. The lower Appellate Court says in its judgment that the chief point that had to be decided was whether defendant 1 was the tenant of the plaintiff. It reversed the finding of the Revenue Court on the ground that under the Mahomedan law Mt. Rabia Bibi had no right to execute a lease on behalf of her minor sons and that therefore it was not binding on the plaintiff. It-further held on the authority of the case in Panchanan Banerji V/s. Anant Prasad that the lease having been executed by some of the co-sharers was not binding upon the others also. In the result it allowed the appeal of the plaintiff and decreed the suit. That decree of the lower Appellate Court has been upheld by the learned single Judge of this Court.