The second appeal by Jagannath was dismissed as the appellant could not challenge findings against his predecessor-in-interest who failed to appeal the prior judgment establishing the lease was void for lack of co-sharer consent.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
[Reserved]
Neutral Citation No. - 2023:AHC-LKO:74406
Court No. - 19
Case :- SECOND APPEAL No. - 477 of 1986
Appellant :- Jagannath Respondent :- Mohd.Bux And Others Counsel for Appellant :- S.C.Misra,Bireshwar Nath,Raghaw Ram Upadhyay,Shailesh Chandra Tiwary
Counsel for Respondent :- S. Mirza,Abdul Rashid,Arshad Ahsan Siddiqui,Mohd. Haneef,Nirmal Tewari,Ravi Shankar Singh,Shivendra Singh,Virendra Singh
Hon'ble Jaspreet Singh,J.
"1.Whether the court below erred in law in having failed to distinguish between the co-sharer and the Nambardar, while holding that the consent of all the co-sharers was required for the Nambardar as it was in respect of a co-sharer and in this view of the matter the decision rendered in the earlier suit could not operate as res Judicata because as the dispute in this case was in respect of the co-sharer and not with the Nambardar?
2.Whether the decision rendered in the earlier case ignoring the provisions of Section 4 and Section 16 (1) (b) of the Land Revenue Act is correct and legal decision binding on this suit?
3.Whether the description given in the Wazibul Arj can override the provisions of Land Revenue Act and could annul effect thereto?
4.Whether the court below erred in law in not considering the point that the contents Wazibul Arj which gives only custom but are indirect conflict with the express provisions of the Land Revenue Act cannot override the effect of the express provisions of the Act?
5.Whether the condition in the Wazibul Arj to the effect that Lambardari could not transfer or execute a lease being a co-sharer within the consent of other co-sharers and further without such a condition is bad in law being unreasonable restriction on the right to property?
6.Whether such a condition stated above is violative of Article 14 of the Constitution of India being arbitrary, bad and amounts to unreasonable restriction on the right to property?
deed executed by Smt. Kaniz Aisha Begum (the original defendant no. 3) in favour of Jagannath (original defendant no. 1). The said suit was registered as Regular Suit No. 22 of 1981. It was specifically pleaded that the property in question belonged to the plaintiff and was part of their muhal . It was further stated that the plaintiff had acquired the property from Smt. Karam Bibi, widow of Mumtaz Ali Khan. It was further stated that certain shops had been created and the plaintiffs wanted to raise two shops over the disputed property and had submitted his building plans to Nagar Palika, Raebareli. It further revealed that Smt. Kaniz Aisha Begum in order to defeat the right of the plaintiff and his predecessor had executed a deed in favour of Jagannath on 17.01.1980. It was stated that the said lease was an outcome of connivance and in any manner, Smt. Kaniz Aisha Begum had no right to execute the said deed and the same was liable to be cancelled.
that once it is not disputed that Mohd. Yaqoob Khan was the lambardar and they had a right in the property, then without seeking the consent of other co-sharers, they could execute the lease and this aspect has not been appropriately considered by the two courts. It is further urged that Wajib-ul-Arj would override the provisions of the Land Revenue Act and even this aspect is not appropriately noticed by the two courts and as such the judgement and decree passed by the two courts is bad in the eyes of law.
No.2 and 3. In the said case, it was specifically noticed that Wajibularz of the Village in the third settlement did not have any term which entitled the Lambardar to grant a permanent lease without the consent of all the co-sharer. The Lambardar could definitely relates to rent and was entitled to distribute the profits amongst the co-sharer but he could not deal with the land by creating transfers on behalf of other co-sharers. It was clearly held that the permanent lease created by the defendants No.2 and 3 alone (referring to Mohd. Yaqoob Khan and Smt. Kaniz Aisha Begum) is void and ineffectuated.
including her right to execute the lease deed was not challenged any further nor she joined the present appellant, Jagannath nor he has challenged the findings of decision rendered by the lower appellate court relating to the appeal filed by Smt. Kaniz Aisha Begum. Thus in light of the aforesaid, it is not open for the appellant to challenge the judgement and decree of the two courts, especially when it has been held that Smt. Kaniz Aisha Begum did not have a right and she did not assail the said findings. Once the predecessor-in-interest of Jagannath has been held to have no right, he primarily on his own cannot contest the proceedings.
Order Date :- 9.11.2023
Shravan
Digitally signed by :- SHRAVAN KUMAR High Court of Judicature at Allahabad, Lucknow Bench
2 issues framed by the court
Whether the appellant can challenge the findings against a predecessor-in-interest who did not appeal the lower court's decision?
Whether the permanent lease created by the predecessor without consent of co-sharers was void and operates as res judicata?
Colour shows how this judgement treated each authority
Hafeez Ali Khan vs. Mohd. Ishaq and othersFollowed¶21
Hafeez Ali Khan vs. Mohd. Ishaq and others
2 provisions across 2 enactments
Jagannath
Mohd. Bux
Shravan Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
