Research › Browse › Judgment

Allahabad High Court · body

1905 DIGILAW 27 (ALL)

Lalu Ram v. Thakur Das

1905-01-30

AIKMAN

body1905
JUDGMENT : AIKMAN, J.:— The fact of this case are somewhat peculiar, Tohfa and Phul Kuar were occupancy tenants of 14 bighas 19 biswas of land. On the 21st June, 1899, they gave the present appellants a lease of this land for a term of 25 years, i.e. from 1310 Fasli to 1334 Fasli inclusive. Out of this land, 13 bighas 13 biswas was at the time of the execution of the lease in favour of the appellants held under another lease granted by the appellants lessors to the respondents, Thakur Das and Narain Das. This latter lease expired in 1309 Fasli. Just before the expiry of this latter lease, i.e. on the 15th May, 1902, the lessors, ignoring the lease which they had granted to the plaintiffs-appellants executed a second sub-lease in favour of the respondents for a further term of five years. The plaintiffs came into court alleging that they had obtained possession of I bigha 6 biswas of the land leased to them, but that they were resisted in, obtaining possession of the rest of the land. They accordingly sued for possession. The first Court gave the plaintiff a decree; this decree was set aside by the learned District Judge, and the plaintiffs come here in second appeal. 2. The learned District Judge relies on the decision of the Court in Sarju Pershad Singh v. Wasir Ali([1900] 21 A.W.N., 11.), In my opinion that case is distinguishable from the present. In the case relied on, there was only a promise to execute a lease: in this case a lease was actually executed. The learned Judge, further relies on the provisions of section 56 of the Indian Contract Act. Under the old Rent Act, which was in force at the time when the plaintiffs', lease was executed, there was no such limitation in regard to the period of a lease as is to be found in section 25 of the N.W. P, Tenancy Act, 1901. That section provides that no expropriator tenant or occupancy tenant shall sub-let for any term exceeding 5 years. But it is clear from section 31 of the Act that a subcase or an agreement to sub-let made by a tenant in contravention of section 25 is not void, but merely voidable at the suit of the landholder. 3. That section provides that no expropriator tenant or occupancy tenant shall sub-let for any term exceeding 5 years. But it is clear from section 31 of the Act that a subcase or an agreement to sub-let made by a tenant in contravention of section 25 is not void, but merely voidable at the suit of the landholder. 3. In the present case the landholder did bring a suit in the Court of the Assistant Collector to cancel the sub lease as being illegal. Rightly or wrongly the Assistant Collector dismissed that suit on the 2nd February, 1903, and his decision has become final. I therefore hold that the lease in favour of the appellants, though opposed to the provisions of the new Act, is not void, and the plaintiffs are entitled to rely on it, The lease, which was granted to the respondents and under which they are now in possession, was executed by persons who had deprived themselves by the lease which they had previously given to the plaintiffs of any right to execute such a lease, and in my opinion it gives the defendants no right, even though they took it in ignorance of the plaintiffs' lease, to resist the plaintiffs' claim for possession. 4. The learned counsel for the respondents raised the plea that the suit had been instituted in the wrong court. Even if there was any thing, in this plea, which is by no mean clear, the provisions of section 196 of the N.W.P. Tenancy Act prevent me from entertaining it. 5. The learned counsel also relied on the decision in the case of Blatchford v. Cole, [1858] 5 C.B.N.S., 514. That ruling was upon a special statute which provided for the recovery of double the yearly value of lands from tenants willfully holding over. It was held that by the provisions of the statute under consideration the right to recover double value was given only to the lessor or landlord person entitled to the reversion, and not to one to whom the landlord has granted a fresh lease. That ruling has, in my opinion, no bearing on the facts of the present case. 6. The respondents counsel further relied on the provisions of sections 56, 58 and 63 of the N.W.P. Tenancy Act and argued that the respondents could only be ejected from the land under the provisions of that Act. That ruling has, in my opinion, no bearing on the facts of the present case. 6. The respondents counsel further relied on the provisions of sections 56, 58 and 63 of the N.W.P. Tenancy Act and argued that the respondents could only be ejected from the land under the provisions of that Act. In my judgment these provisions refer to cases where the relation of landholder and tenant exists between the parties. In the present case no such relation exists between the appellants and respondents. Qua the appellants, the respondents are merely trespassers holding under a lease granted by persons who had no right whatever to grant it. 7. For the above reasons I think this appeal must succeed. The learned Vakil for the appellant professes his willingness on the part of his client not to eject the defendants, whose bona fides there seems no reason to doubt, until any crops grown by the defendants and now standing on the land in dispute shall have been removed. 8. I allow the appeal with costs, and setting aside the decree of the lower appellate court, with costs, I restore the decree of the court of first instance, with this modification that, if any of the fields have crops standing on them possession shall not be given until these crops have been removed, provided that the plaintiffs' right to take possession shall not be delayed beyond the 15th June, 1905.