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Allahabad High Court
Inayat Ullah Khan vs Khuda Baksh And Ors. on 19 March, 1909
Equivalent citations: 1 Ind Cas 665
Author: G Knox
Bench: G Knox


George Knox, J.

1. This second appeal arises out of a suit brought by one Inayat Ullah Khan. He sets out in his plaint that he is the zamindar and that the defendants-respondents are occupancy tenants of a certain grove. The respondents have prevailed upon the Settlement Court to expunge the name of the plaintiff from the khewat as regards the plot of land in dispute and to enter that of the respondents. As he considers this prejudicial to his rights he has brought the present suit to have it declared that he is the owner of the land in question. It may be noted that no-where in the plaint does the appellant express any wish to eject the respondents from the land. He alleged that they are his tenants and so far as the present suit goes he is content that they should remain so. In defence the respondents denied plaintiff’s title, set up title in themselves, denied possession of the plaintiff and contended that Section 42 of the Specific Relief Act operated as a bar to his claim. Both the Courts below have accepted this contention and dismissed the claim of the plaintiff. Plaintiff comes here in second appeal and contends that the lower Courts are wrong in holding that the suit was barred by Section 42 of the Specific Relief Act, That section runs as follows: “Any person entitled to any legal character or to any right as to any property may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may, in its discretion, make therein a declaration that he is so entitled and the plaintiff need not, in such suit, ask for any further relief.” The respondents, however, take their stand upon the other provision of Section 42 which runs: “Provided that no Court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title omits to do so.” The respondents contend that they have got their names entered in the settlement khewat and the plaintiff is able to seek the further relief of ejectment.” Now it is laid down in Section 56 (Local Act II of 1901) that no tenant shall be ejected otherwise than under the provisions of that Act and it has been held in Ram Sukh v. Gokul Chand 21 A. 143 that the mere fact that the land-holder’s alleged cause of action is the denial by the tenant of the land-holder’s title, will not give the land-holder the right to sue for ejectment in the Civil Court. It is also open to question whether in any case a denial of landlord’s title amounts to an act falling within the grounds for ejectment under Section 56 of Act II of 1901. Possibly and probably the Legislature thought it expedient not to take notice of a mere verbal denial of his landlord’s authority by a tenant. So long as the tenant continues to pay the rent it matters little whether he sits in the village and claims to be a proprietor when he is not one. The moment he refuses to pay rent the landlord has his remedy by ejectment. Be that as it may, I see no further relief the appellant could have asked for in the suit as brought by him. The result is that this appeal must be allowed and the decrees of the Courts below set aside. I remand the case under O. 41 R. 23 to the lower Court to re-admit the appeal under its original number and dispose of according to law. Costs here will abide the event.

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