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Allahabad High Court
Mohamed Fida Husain Khan vs Hazari Singh And Ors. on 3 May, 1926
Equivalent citations: 95 Ind Cas 717
Author: A Worth
Bench: A Worth


Ash worth, J.

1. No one appears for the respondents in this appeal. It is, therefore, heard ex parte.

2. This second appeal arises out of a suit brought by the plaintiff-appellant for resumption of a rent-free grant on the ground that the grant was a conditional one and that the grantees had broken the condition. The defence was that the grant was not a conditional one, and that even if it was, the condition had not yet been broken. The first Court found that the wajib-ul-arz recorded as follows:—“The rent of this land has been excused from of old, and no services are required. For the future, also the land shall continue to be rent-free, but the muafidar shall not have the power to sell or mortgage.”

3. This it held to amount to record that the grant was a conditional one. On the strength of the evidence, therefore, it held that the grant was a conditional one. It also held that the mortgage-deed having been completed and consideration paid, breach of the condition had occurred. There was an appeal to the District Judge, fie held that the wajib-ul-arz properly construed was no evidence of a conditional grant. It drew a distinction between a conditional muafi and a muafi with a condition attached to it. Accordingly he held that the plot could not be resumed, and remanded certain issues for determining whether rent could be assessed on it. The finding of the first Court on remand was that Section 158 was a bar to the assessment of rent, because the grant had been held rent-free for 50 years and by two successors to the original grantee. This finding was challenged in appeal unsuccessfully, and the suit was dismissed. In the present appeal it is urged that the District Judge’s finding that the grant was not a conditional One is wrong, and that no distinction could be drawn, between a conditional muafi and a muafi with a condition attached to it. The District Judge who decided this point gave no authority in his judgment for his views. I consider that the first Court was right, in holding that the wajib-ul-arz meant that the land was granted rent-free with a condition that it was not sold or mortgaged, Possibly the District Judge had in his mind the difference between a condition breach of which involves forfeiture, and a condition breach of which is not specified to have such an effect. Section 154, however, of the Tenancy Act, draws no distinction between conditions breach of which involve forfeiture and conditions breach of which do, not carry such a result. I hold, therefore, that the land was resumable. This being the case, Section 158 which provides that where land is not liable to resumption the grantee shall be recognized as proprietor in certain cases, has no application. I would note that the position never appears to have been taken up in the lower Court; that the wajib-ul-arz should not have been accepted as proof of the conditions of the grant, and so I have not touched on this point in second appeal.

4. For the above reasons, I allow this appeal, and restore the decree of the first Court. The plaintiff will get his costs in the lower Appellate Court and in this Court including fess on the higher scale.

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