Mohammad Ali v. L. Ram Prakash — 1966 DIGILAW 66 (ALL)

JUDGMENT Rajeshwari Prasad, J. - This is a plaintiff's appeal against the decree passed by the Civil Judge Etah dated 27th August, 1953 in Civil Appeal No. 156 of 1952 arising out of Original Suit No. 115 of 1947 of the court of Munsif Etah. 2. The plaintiff-appellants filed the suit giving rise to this second appeal on the 26th February, 1947 and sought a decree for cancellation of two pattas executed in favour of Ram Prakash respondent. One of the said pattas was executed by Shrimati Abbasi Begum on her own behalf as well as guardian of Shrimati Zubbeda, Shrimati Rubbeda, Shrimati Alia and Ejaz Ali who were her children. The other patta was executed by Hafiz Ali. These two pattas related to grove No. 70/1 which was earlier part of grove No. 70. The plaintiffs alleged that on the 10th June 1935, Mahfooz Fatma shown in the pedigree relied upon by the plaintiff transferred her interest in the grove by means of a sale deed to Shrimati Hashmat Bibi and Shrimati Kaniz Fatma. The plaintiffs therefore alleged that they were co-sharers in the Khewat and in grove No 70/1 and as the pattas in question had not been executed by all the co-sharers, they were invalid. 3. Ram Prakash, the defendant pleaded that the pattas were valid and that he had at least become the tenant of the arazi covered by leases. It was also alleged by the defendant that the share of Hafiz Ali in the grove in suit had been separated by means of a private partition and chat therefore the lease executed by him was valid in all respect. It may also be mentioned that there was another Suit, being Suit No. 645 of 1946 which had been filed by Ram Prakash against the plaintiffs of the present suit for recovery of possession over the land covered by the two leases granted to him as well as for injunction, damages and for some other reliefs. The learned Mnnsif dismissed Suit No 645 of 1946 and decreed suit No. 115 of 1947 which has given rise to the present second appeal. 4. The learned Mnnsif dismissed Suit No 645 of 1946 and decreed suit No. 115 of 1947 which has given rise to the present second appeal. 4. When the matter went before the lower appellate court, the lower appellate court by a common judgment decreed the suit of Ram Prakash i.e. Suit No. 645 of 1946 for joint possession over the grove in suit to the extent of the interest of Shrimati Abbasi Begum and Hafiz Ali. The decree granted in Suit No. 115 of 1947 by the lower appellate court declared that the leases in question were not binding on the plaintiffs of Suit No. 115 of 1947 but that they were binding against the interest of Shrimati Abbasi Begum and Hafiz Ali. Two appeals were filed in this court and the present appeal is an appeal arising out of Suit No. 115 of 1947. So far as the other connected appeal, being Second Appeal No. 2350 is concerned, the hearing of that appeal has been stayed under Sec. 5 of the U.P. Consolidation of Holdings Act. 5. Mr. Shambhoo Prasad learned counsel for the respondents before me conceded that the two leases could not affect the share and interest of such other co-sharers who were not the lessors of Ram Prakash. According to him, the controversy in the second appeal is only relating to the share and interest of Shrimati Abbasi and Shri Hafiz Ali, who were the lessors of Sri Ram Prakash. 6. On behalf of the appellants, learned counsel contended that the leases were absolutely void under Sec. 246 of the U.P. Tenancy Act and the share and interest of the actual lessors also were not effected by the said transaction. Sri Ram Prakash, the lessee was not entitled even to a joint possession of the property in suit. The argument is that as all the co-sharers had not joined in executing the lease as required by Sec. 246 of the U.P. Tenancy Act, the leases were unenforceable against the lessors also. 7. The learned counsel for the respondents further conceded that the concurrent finding of the two courts below that there was no partition between the co-sharers of the grove in suit, is a finding which he cannot question in second appeal. 7. The learned counsel for the respondents further conceded that the concurrent finding of the two courts below that there was no partition between the co-sharers of the grove in suit, is a finding which he cannot question in second appeal. He, however, contended that the leases in question were not leases for cultivatory or agricultural purposes but were leases of proprietary rights and consequently Sec. 246 of the U.P. Tenancy Act did not apply. 8. It will thus appear that the sole question that I am called upon to decide in this second appeal is whether the leases in question are leases of proprietary rights and for that reason they are not vitiated on recount of the fact that all the co-sharers did not join, or on the other hand whether the leases are leases for cultivatory or agricultural purposes giving the lessee status of a tenant and are, therefore, vitiated on account of provisions of Sec. 246 of die U.P. Tenancy Act. 9. In order to decide the nature of the transaction, one must necessarily first look to the document by which such a transaction has been effected. The two lease deeds are similar in language and terms. In the lease deed executed by Shrimati Abbasi Begum, the land said to be demised is shown to be on the western side and its area is said to be 82 acres out of a total area of 3.8 acres. It is said in the lease that this specific portion of the land is the exclusive property of the lessors. The lease grants heritable and transferable permanent rights to the lessees in the grove forming the subject matter of the lease. The rent reserved under the lease is Rs. 4/4 per year. It further professes to have put the lessee in possession of the land leased. It further gives the liberty to the lessee either to maintain die trees that were existing in the grove at that time or to cut and remove the trees, to construe buildings, wells Kham or pukhta or to plant trees afresh. It also acknowledged receipt of Rs 250/- as the price of the trees, standing in the grove. It declares that the lessee would be full owner of the demised land. The rent fixed was not liable to be enhanced or reduced irrespective of the enhancement or decrease in the income from the property. It also acknowledged receipt of Rs 250/- as the price of the trees, standing in the grove. It declares that the lessee would be full owner of the demised land. The rent fixed was not liable to be enhanced or reduced irrespective of the enhancement or decrease in the income from the property. It then goes on to say that the lessee may get his name recorded as entitled to heritable rights, and it further adds a sentence that whatever rights a kasht marosi has in the village all those rights will accrue to the lessees. The last sentence in the deed is that the lessee will have a right of transfer. 10. The first submission made on behalf of the appellants is that the rights granted to the lessee under the leases in question gave him the status of hereditary tenant within the meaning of the U.P. Tenancy Act and the further rights given to him can only be treated as additional rights given to a hereditary tenant. The real purpose was to create hereditary tenancy. It was then argued that the additional right given were rights which could validly be given to a hereditary tenant under the provisions of the U. P. Tenancy Act and the fact that additional rights were given was not incompatible with the status of the lessee as a hereditary tenant. My attention has been drawn to Sec. 4 sub-Cl. (4) of the U. P. Tenancy Act in this connection which reads as follows.: - "Subject to the provisions of this section and any other law for the time being in force, any agreement entered into including an agreement conferring transferable rights shall be valid and enforceable." 11. It has been urged on the basis of the above provision that the addition of unusual rights to the right of hereditary tenants will not bring bout a change of the status of the hereditary tenant, but he must continue to be treated as a hereditary tenant with additional rights permissible under the law. 12. It may be noticed that the above sub-Cl. (4) of Sec. 4 starts by providing "subject to the provisions of this section and any other law for the time being in force". 12. It may be noticed that the above sub-Cl. (4) of Sec. 4 starts by providing "subject to the provisions of this section and any other law for the time being in force". The additional rights, which could be given under Sec. 4(4), therefore, must be rights the giving of which is not prohibited by the other provisions of the T. P. Tenancy Act or any other law for the time being in force. 13. Apart from this, a perusal of Sec. 30 of the U.P. Tenancy Act would go to show that no hereditary rights can accrue in a grove land. The land involved in this suit is no doubt a grove. Price of the standing trees have been received by the lessor. Sec. 33 of the Act would show that the rights of hereditary tenant may be heritable but not transferable. The succession to such right will have to be governed by the rule given in Sec. 35 of the Act. It would thus appear that the rights given to the lessee in this particular case are rights which are not available to a hereditary tenant. A right would be deemed to be an additional right so long as such additional right does not destroy the status of hereditary tenant. If the additional rights result into annihilating the status of hereditary tenant, then rights as hereditary tenant cease to which such rights could be deemed to be additions. A right can be deemed to be an additional right so long as such additional right does not destroy that to which it is an addition. If the effect of the additional right is that the status of hereditary tenant as prescribed by the U.P. Tenancy Act ceases to exist, then such rights cannot flourish as additional rights of a hereditary tenant. 14. With regard to Sec. 30 of the U.P. Tenancy Act what has been urged before me by the learned counsel for the appellant is that the accrual of hereditary right alone is prohibited by this provision, and conferment of hereditary rights is not affected by Sec. 30. I am unable to accept this contention because in either case there is accrual of hereditary rights. In one case it accrues as a matter of growth from the provisions of law, in the other case, it accrues as a result of conferment of the right. I am unable to accept this contention because in either case there is accrual of hereditary rights. In one case it accrues as a matter of growth from the provisions of law, in the other case, it accrues as a result of conferment of the right. The contention, therefore, that the status of the respondent in this case is that of hereditary tenant must be rejected. 15. For some reasons, he cannot be considered to be an occupancy tenant either. The possibility of the defendants status as a tenant is thus eliminated. 16. The position of the respondent Ram Prakash cannot be that of a Thekedar for agricultural purposes either. Land was let out to him for the purpose of making constructions over it also and in view of such intention of the parties for the purpose of that transaction, it ceases to be land within the meaning of the U.P. Tenancy Act. The lease in question, therefore, is not a lease within the provisions of the U.P. Tenancy Act and consequently the provisions of the U.P. Tenancy Act would not affect its validity. I am therefore of the opinion that the lease is not vitiated on account of the fact that all the co-sharers did not join in executing the same. 17. A lease with similar conditions was held to be a lease not for cultivatory purpose but a lease of proprietary rights in the case of Khatoon v. Sripal Singh, AIR 1952 Allahabad 650 by a Division Bench of this Court. 18. Sec. 44 of the Transfer of Property Act grants to the transferee under such circumstances the transferor's right to joint possession or other common or part enjoyment of the property and to enforce a partition of the same but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. The only exception to this rule of law is the one in favour of the transferee of the share of a dwelling house belonging to an undivided family. In this view of the matter, there is no reason why the lease be not binding to the extent of the interest and share of the lessors, namely, Shrimati Abbasi Begum and Hafiz Ali. The court below has rightly relied on the decision in Sobhanath Lal v. Vidya Prasad, AIR 1950 Allahabad 409. In this view of the matter, there is no reason why the lease be not binding to the extent of the interest and share of the lessors, namely, Shrimati Abbasi Begum and Hafiz Ali. The court below has rightly relied on the decision in Sobhanath Lal v. Vidya Prasad, AIR 1950 Allahabad 409. On the whole, the decision arrived at by the lower appellate court is justified by the circumstances of the case and I am not inclined to interfere with it in second appeal. 19. Appeal is dismissed and the decree passed by the lower appellate court is confirmed. In the circumstances of this case, I make no order as to costs.