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Hari Ram v. Abdul Rajjak - SECOND APPEAL No. 1402 of 1972  RD-AH 4847 (1 March 2006)
Second Appeal No.1402 of 1972
Hari Ram (since deceased) substituted by
Smt. Durga Devi & others
Abdul Rajjak & others
Hon. Sunil Ambwani, J.
Heard Shri S.M. Dayal, learned counsel for the appellants and Shri K.N. Saxena, learned counsel for the respondents.
Cause shown is sufficient. The restoration application is allowed. The order dated 30.11.2005 is recalled. The second appeal is restored to its original number and has been heard.
This second appeal came up for hearing earlier and was partly allowed on 1.9.95, modifying the decree of the lower Appellate Court and decreeing the suit only for Rs.50/- from defendant Nos.1 and 2. Rest of the suit was dismissed.
The review application was allowed on the ground that some of the parties were dead and were not substituted. Now the counsel for the parties agree that the substitutions have been carried out and the appeal is ready for hearing.
Brief facts giving rise to the second appeal as stated in the earlier judgment are reiterated as below:
"This appeal is directed against the judgment and decree dated 21st April, 1972 of Shri Tej Shanker, Additional Civil Judge, Jhansi, reversing the judgment and decree of the trial court, dismissing the suit of the plaintiffs and directing that a decree for Rs.72 be passed in favour of the plaintiffs and refusing to grant other reliefs in the nature of prohibitory and mandatory injunctions.
The brief facts are that the plaintiffs and defendant No.3 claimed to be lessees of the land denoted by letters A B C D E in the plaint site plan and owners of the tiled shed denoted by letters H C K J. This tiled shed was popularly known as ''Tapra'. Imamuddin was the father of the plaintiffs and defendant No.3. He purchased the lease-hold rights in the land and ownership rights in Tapra through a sale-deed dated 30th July, 1943 from one Ali Mohammad. Imamuddin died near about 1951; that the plaintiffs and defendant No.3 inherited the said rights as heirs of Imamuddin. The land and the tiled-shed were let out by Imamuddin in the year 1947 to Ayodhya Prasad, father of defendant No.1 and husband of defendant No.2 on a monthly rent of Rs.2/-. The rent was subsequently enhanced to Rs.15/- per month. After the death of Imamuddin, Ayodhya Prasad became tenant on behalf fo the plaintiffs and defendant No.3. Ayodhya Prasad also died in the year 1959 and upon his death his heirs, namely, defendant No.1 and 2 became tenants of the plaintiffs and defendant No.3 in the said land and tiled-shed. It was alleged that defendant Nos. 1 and 2, without any right wanted to make alteration in the shed and make construction over the land. They demolished a portion of the wall of the shed and also started raising new construction. Consequently a suit for permanent injunction as well as mandatory injunction together with the claim of arrears of rent from 3rd May, 1963 to 2nd May, 1965 at the rate of Rs.2/- per month amounting to Rs.72/- was filed.
Defendants No.1 and 2 resisted the suit on several grounds. It was admitted that Ayodhya Prasad took on rent the land from Imamuddin and there was no tiled-shed (Tapra) existing over the land at that time. Ayodhya Prasad constructed his own tiled-shed, which later on fell down and the land became vacant. The relationship of landlord and tenant between Ayodhya Prasad and Imamuddin was thus denied. It was pleaded that the land belonged to one Abdul Moti, who was the Zamindar. He migrated to Pakistan. Whereupon his land vested in Custodian of Evacuee Property. The Custodian sold the zamindari rights in the disputed land to defendant No.1 and executed a sale certificate dated 5th June, 1965. By virtue fo this sale certificate Hari Ram, defendant No.1 became owner of the land in suit and also he is owner of Tapra, which was constructed with the permission of the Municipal Board on 15th June, 1965. There was another plea that a sum of Rs.200/- was borrowed by the plaintiffs from the contesting defendants, which could not be paid and in lieu of agreement between the parties, defendants No.1 and 2 became owner of the land. Defendants No.1 and 2 raised construction, spending a sum of Rs.4000/-. Consequently the plea of estoppel and acquiescence was also raised by them. It was also pleaded that Custodian Evacuee Property is a necessary party to the suit.
The learned Munsif found that the plaintiffs were neither the owners of Tapra nor the owners of the land in suit. He was of the view that the suit is bad for non-joinder of Custodian Evacuee Property. The plea of estoppel and acquiescence raised by defendants No.1 and 2 was turned down by the learned Munsif. On the basis of the agreement between the parties regarding loan and its payment, it was further held that the defendants became owners of the disputed property. With these findings and observing that the rights of the tenants have merged in the ownership right, the suit was dismissed.
The lower appellate court refused to grant the relief of injunction by observing that efficacious relief of damages was available. It was, however, found by the lower appellate court that the plaintiffs are the lessors of defendants No.1 and 2 and also owners of Tapra in dispute. The plea of merger of rights of the tenants in the ownership right was not accepted by the lower appellate court. Consequently a decree for Rs.72/- only as arrears of rent was granted. Feeling aggrieved, this second appeal has been filed.
A cross objection was also filed from the side of the respondents, challenging the findings of the two courts below, refusing to grant the relief of injunction."
Shri S.M. Dayal, learned counsel for the appellants states that Abdul Moti was a Zamindar. He migrated to Pakistan and thus property was vested in Custodian of Evacuee Property. This property was purchased by sale certificate (Ex.A-1) of plot No.523 sold by Managing Officer, Evacuee Property to Hari Ram son of Ayodhya, one of the sub-lessees of the plot on 5.6.1965 and thus he became the owner of the land. The property vested in custodian and was sold free from all encumbrances and thus the right as lessee is no longer a issue. The suit was filed in the year 1966. The issue whether one Ali Mohammad obtained lease-hold rights from Abdul Moti, or that Ali Mohammad was paying Rs.12/- as rent to Zamindar Abdul Moti are no longer of any consequence and will not affect the rights of Hari Ram flowing from the sale certificate issued by the Managing Officer.
Shri K.N. Saxena, learned counsel for the respondents submits that Hari Ram purchased the Zamindari rights of Abdul Moti and that he stepped in the shoes of the Zamindar. The sale certificate by the Managing Officer shall not disturb the rights of lessee and thus the respondent continued to be the lessee of the plot. Imamuddin, father of plaintiff and defendant No.3 died in the year 1951 and thereupon his sons namely the plaintiff and defendant No.3 inherited his rights and will continue to be the sub-lessee. Ayodhya Prasad become sub-lessee heir of Imamuddin.
The vesting is free from all encumbrances and sale certificate by Managing Officer give ownership rights and not right as lease holder. However, the rent for the period at the rate of Rs.2/- will come to Rs.50/- for the period from 3.5.1963 to 5.6.1965, which is a date of issuance of sale certificate and thus the plaintiff was entitled to a decree of only Rs.50/-.
The second appeal is, consequently, partly allowed. Judgment and decree of the lower Appellate Court are modified and the plaintiff suit is decreed for recovery of Rs.50/- from defendant Nos. 1 and 2 only. Rest of the suit is dismissed.
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