LAWS(PVC)-1929-6-26

RAGHUBIR CHAUBE Vs. GAURI CHAUBE

Decided On June 28, 1929
RAGHUBIR CHAUBE Appellant
V/S
GAURI CHAUBE Respondents

JUDGEMENT

(1.) This is an appeal by the defendants against a decree of the lower appellate Court in favour of the plaintiffs. The plaintiffs are cosharers in a mahal along with the defendants and the plaintiffs sued for possession of certain specific plots and for damages for dispossession in regard to the year 1332 Fasli. The Court of first instance dismissed the suit for separate possession of the plaintiffs and damages and granted a decree merely for joint possession. The plaintiffs based their case on the following facts.

(2.) Newaz Chaube was a cosharer in this mahal and he mortgaged the zemindari to the plaintiffs. The plaintiffs brought a suit on this mortgage and got a foreclosure decree and purchased the share of Newaz Chaube. Newaz Chaube had certain sir lands in this mahal and he became the ex-proprietary tenant of the sir as the result of these proceedings. Newaz Chaube paid his rent to the plaintiffs alone since the year 1883. A dispute arose between the plaintiffs and the defendants in regard, to this holding of Newaz Chaube and there were proceedings in Court under Section 145, Criminal P.C. and the criminal Court found on 21st October 1924 that the defendants were in possession and maintained their possession. In December 1S25 Newaz Chaube died. On 18 January 1924 Newaz Chaube executed a document of relinquishment in favour of the plaintiffs. The plaintiffs, therefore, claim to be entitled to the plots which were the exproprietaryholding of Newaz Chaube both on the ground that Newaz Chaube executed the relinquishment is favour of the plaintiffs and also that Newaz Chaube was specially their tenant and on his death the plaintiffs are entitled to possession of the lands. The defendants on the other hand maintain that the exproprietary tenancy of Newaz Chaube arose in favour of all the cosharers in the mahal and accordingly Newaz Chaube was not entitled to relinquish his exproprietary holding in favour of the plaintiffs alone; and on the death of Newaz Chaube the plaintiffs alone would not be entitled to possession of this exproprietary holding.

(3.) It has been laid down in Muhammad, Ibrahim V/s. Ram Krisha Rai [1912] 10 A.L.J. 95 and Debi Prasad V/s. Bhagwan Din [1912] 35 All. 27 that on a sale of a share in a mahal the vendor becomes the exproprietary tenant of all the cosharers in sir plots and not merely the exproprietary tenant of the vendee. The latter ruling is a Full Bench ruling. The argument for the plaintiffs is that the present case is different from the case in the Full Bench ruling, because Nawaz Chaube was for a great number of years treated as a sole tenant of the plaintiffs-, and in fact plaintiffs alone had sued Newaz Chaube for, enhancement of rent. No evidence, how ever, has been placed on the record in regard to the wajib-ul-arz, or any special custom in this village, under which a tenant may be the tenant of only one cosharer. Another fact on which the plaintiffs rely as differentiating this case from the cases and the rulings cited for the defendants, is that in the mahal in question there is no tenancy land but only sir land and certain uncultivated land and groves etc. The exproprietary tenancy of Newaz Chaube was the only cultivated land in this mahal which was not sir. It is contended, therefore, that in equity the plaintiffs had a right to treat this exproprietary tenancy a specially appertaining to the one quarter share in this mahal which the plaintiffs-acquired. Reliance is placed on certain statements in the Full Bench ruling: Debi Prasad v. Bhagwan Din [1912] 35 All. 27 at 439 (of 10 A.L.J.) One of the statements is In our opinion this view of the circumstances of this case is correct