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IN THE HIGH COURT OF ALLAHABAD
Agarwala, J.
ABDUL GHAFOOR - Appellant
Versus
LALA KUNJ BEHARI LAL - Respondents
First Appeal 54 Of 1951
Decided On : 01/23/1957
PARTITION - Permanent tenancy - Proof - Onus - Surrender of permanent tenancy - Implied surrender - Agreement between lessee and mortgagee - Effect on mortgagor - Adverse possession - Acquisition of permanent tenancy rights by adverse possession - Tenant in possession cannot set up adverse title during subsistence of tenancy.
Fact of the Case:
The suit for partition was instituted in 1940. The property in dispute consisted of a big ahata situated in mohalla Rahimganj in the City of Lucknow. It consisted of shops and residential houses. The property was originally owned by Begam Mumtaz Mahal wife of Nawab Ghaziuddin hyder. In 1874, she gifted this property to her sister-in-law, Srimati Mulko. In 1885, Srimati mulko sold it to Babu Rahim Bux who was a benamidar for his father Babu Khuda Bux. Babu Khuda Bux died in 1895 and he was succeeded by three sons, Rahim Bux, Karim bux and Nabi Bux, ten daughters and a widow. Seven of these ten daughters relinquished their shares in 1903 in favour of their brothers and mother. In 1904, the three sons, the remaining three daughters and their mother mortgaged with possession the entire estate in favour of the Maharaj of Balrampur by means of a deed dated the 12th of February, 1904. The Balrampur Estate then remained in possession from 1904 to 1921. In 1919, the Maharaja of Balrampur brought a suit upon his mortgage and obtained a preliminary decree for sale. In 1920, Rahim Bux and his two brothers, not being able to pay off the mortgage decree, sold the equity of redemption to one Murlidhar. Murlidhar redeemed the mortgage and paid off the amount due under the preliminary decree to the Maharaja of Balrampur in 1921. Faqir Bux, original defendant No. 1 acquired a share in the equity of redemption from the three daughters and the widow of Babu Khuda Bux and then brought a suit for redemption of his share against Murlidhar, and ultimately, by paying off the amount due upon his share to Murlidhar, became a co-sharer in the property to the extent of 3 annas, 10 pies and 9 kirants. This was in the year 1922. By different deeds of transfer Murlidhars share went to Srimati Kallo, original defendant No. 4 and to Kundan Lal, predecessor-in-interest of the plaintiffs, Kunj Behari Lal and srimati Dallo who have brought the present suit for separation of their share by partition of the property.
Finding of the Court:
The Court held that the lease in favour of the defendants-appellants was not a permanent one but was terminable at the will of the lessor. The Court also held that the defendants-appellants did not acquire permanent tenancy rights by adverse possession.
Issues: 1. Whether the lease in favour of the defendants-appellants was a permanent one or a terminable one? 2. Whether the defendants-appellants acquired permanent tenancy rights by adverse possession?
Ratio Decidendi: 1. The onus of proving that a tenancy is permanent is on the tenant. The mere fact of long occupation at a fixed rent does not raise a presumption of permanent tenancy. 2. A permanent tenancy can be surrendered by an implied surrender. An implied surrender occurs when the tenant, with the assent of the landlord, grants a new lease. The acceptance of a new lease by the tenant operates as a surrender of the former lease. 3. A tenant in possession cannot, during the subsistence of the tenancy, set up an adverse title.
Final Decision: The appeal was dismissed with costs and the decree made by the Court below was confirmed.
( 1 ) THIS is defendants appeal arising out of a suit for partition which was instituted as along ago as the 1st of April, 1940. The plaintiff in the action was one Kundan Lal. He died during the pendency or the suit and is represented by his son Kunj Behari Lal and widow Srimati Dallo. The defendants to the action were four in number. Haji Faqir Bux, son of Haji Khund Bux, two sons of Haji Faqir Bux, Abdui Ghafoor and Sheikh Abdulla were defendants 1 to 3. Haji Faqir bux died during the pendency of the litigation and his two sons who are appellants in this appeal are his representatives. These three defendants constituted one set of defendants. The fourth defendant was Srimati Kallo who also died during the pendency of this litigation and is now represented by her grandson Hamidwllah, The property, of which partition was sought, consists of a big ahata situated in mohalla Rahimganj in the City of Lucknow. It consists of shops and residential houses.
( 2 ) THE property was originally owned by Begam Mumtaz Mahal wife of Nawab Ghaziuddin hyder. In 1874, she gifted this property to her sister-in-law, Srimati Mulko. In 1885, Srimati mulko sold it to Babu Rahim Bux who was a benamidar for his father Babu Khuda Bux. (This gentleman Babu Khuda Bux is to be distinguished from Haji Khuda Bux, father of Haji Faqir bux ). Babu Khuda Bux died in 1895 and he was succeeded by three sons, Rahim Bux, Karim bux and Nabi Bux, ten daughters and a widow. Seven of these ten daughters relinquished their shares in 1903 in favour of their brothers and mother. In 1904, the three sons, the remaining three daughters and their mother mortgaged with possession the entire estate in favour of the Maharaj of Balrampur by means of a deed dated the 12th of February, 1904. The Balrampur Estate then remained in possession from 1904 to 1921. In 1919, the Maharaja of Balrampur brought a suit upon his mortgage and obtained a preliminary decree for sale. In 1920, Rahim Bux and his two brothers, not being able to pay off the mortgage decree, sold the equity of redemption to one Murlidhar. Murlidhar redeemed the mortgage and paid off the amount due under the preliminary decree to the Maharaja of Balrampur in 1921. Faqir Bux, original defendant No. 1 acquired a share in the equity of redemption from the three daughters and the widow of Babu Khuda Bux and then brought a suit for redemption of his share against Murlidhar, and ultimately, by paying off the amount due upon his share to Murlidhar, became a co-sharer in the property to the extent of 3 annas, 10 pies and 9 kirants. This was in the year 1922. By different deeds of transfer Murlidhars share went to Srimati Kallo, original defendant No. 4 and to Kundan Lal, predecessor-in-interest of the plaintiffs, Kunj Behari Lal and srimati Dallo who have brought the present suit for separation of their share by partition of the property.
( 3 ) THERE was a dispute between the parties as to their respective shares in the property which has now been finally settled. The plaintiffs have been found to be entitled to a 4 annas and odd share. Kallos heir, Hamidullah, had been found to be entitled to an eight annas share and Abdul ghafoor and Sheikh Abdullah appellants to 3 annas, 10 pies and 9 kirant share.
( 4 ) ONE of the defences raised by Haji Faqir Bux and his sons Abdul Ghafoor and Sheikh Abdulla was that in addition to their being co- sharers in the property, they were permanent lessees of three shops abutting the Aminabad Road in the western portion of the ahata and of the land on the back of these shops, towards their east on which they have made numerous constructions both for residential purposes and for the manufacture of tobacco. The shops and land over which permanent lessee rights are claimed by the defendants-appellants are very large in area and are much more than the area to which they would be entitled on account of their share in the proprietary rights.
( 5 ) A Commissioner was appointed by the Cour
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