SITAL DIN DUBE Vs. SRIPAL SINGH

JUDGEMENT

(1.) The essential facts may be briefly stated as follows: On 2 February, 1899 some of the respondents, along with the predecessors-in-interest of the other respondents and some other members of their family who are dead, executed a deed in favour of one Lal Satnarain Pal Singh. By means of this deed certain land measuring 35 bighas 1 biswa 19 dhurs was granted to Satnarain Pal Singh on payment of a nazrana of Rs. 2499 for cultivation. The grantee was to pay rent at the rate of Rs. 210 per annum. The grantors covenanted that the grantee would be entitled to remain in possession generation after generation and it was stipulated that the grantee would pay the annual rent agreed upon without any objection on the ground of failure of rains or on the ground of any other similar calamity. The grantors further agreed that they would have no right to enhance the rent or to eject the grantee and that the only right which they would have against the grantee would be to recover the rent fixed. It was further stated in the deed that the grantee would have rights in the land similar to those of a fixed rate tenant and it was expressly provided that the executants, their heirs and their representatives would not have the right of interfering in any manner whatsoever with the land and would have no other right than that of realizing the rent.

(2.) The appellants have purchased the rights of Lal Satnarain Pal Singh, the grantee. They seem to have fallen into arrear in the payment of the rent fixed and on 11 February 1936 the zamindar instituted proceedings under Section 81, Agra Tenancy Act, (Act 3 of 1926). The amount due was stated to be Rs. 436. The appellants evidently contested the claim and the application for issue of notice was therefore deemed to be a suit for arrears of rent, and the amount claimed being in excess of Rs. 200 the suit was forwarded to the Court of the Assistant Collector in charge of the sub-division who decreed it on 18 July 1936. In October 1936 the respondents applied for the execution of this decree for arrears of rent by ejectment of the appellants under Section 79, Tenancy Act. The appellants contested the application for execution by ejectment and contended that under the terms of the deed dated 2 February, 1899 they could not be ejected. The Assistant Collector overruled their contention and ordered ejectment on 6th January 1937. The appellants preferred an appeal against this order in the Court of the District Judge and their appeal was dismissed by an order dated 18th September 1937. Thereupon this execution second appeal was filed in this Court.

(3.) An objection had been taken in the Court of the District Judge that no appeal lay to that Court against the order of the Assistant Collector dated 6 January 1937, and a preliminary objection has been raised here that no second appeal lies to this Court. It is not necessary for us however to deal with this point in any detail because on the one hand it has ultimately been conceded by the learned Counsel appearing for the respondents that the order of the Assistant Collector dated 6 January 1937 was an order of the nature mentioned in Section 47, Civil P.C., and so an appeal did lie to the Court of the District Judge under the provisions of Section 248(3), Tenancy Act, and on the other it has been conceded by the learned Counsel appearing for the appellants that no second appeal lies to this Court in view of Section 249 of the Act. Learned counsel appearing for the appellants has however prayed that the appeal may be treated as a petition in revision and may be entertained as such. Learned counsel for the respondents at first argued that no revision can lie to this Court in a case like the present but in view of the provisions of Section 253, Tenancy Act, and of the decisions in Faqira Singh V/s. Pardamand Kumar and Aisha Bibi V/s. Divandar Prasad , he had to concede that a revision does lie to this Court. He has however strenuously argued that on the facts none of the grounds mentioned in Section 253 of the Act exist and that there are no grounds on which we can interfere. We shall deal with this argument presently.