Sukha And Anr. vs Lachmi Narain And Ors. on 2 May, 1928

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Allahabad High Court
Sukha And Anr. vs Lachmi Narain And Ors. on 2 May, 1928
Equivalent citations: AIR 1928 All 621, 113 Ind Cas 829
Author: Bennet


Bennet, J.

1. This is a second appeal by two minors under the guardianship of their mother who sued for the following reliefs:

1. That a declaration should be granted that decree No. 400 of 1923, dated 9th October 1923, passed by the Assistant Collector, 1st Class, decreeing arrears of rent for an occupancy holding, of which Bena and others were tenants, has been obtained by defendants 1, a zamindar, by fraud, deception and misrepresentation, and that no lawful guardian for the appellants was appointed in that suit on account of fraud and deception practised by defendant 1, and that the said decree is void and ineffectual against the appellants, and that all proceedings as to ejectment in that decree are not binding on the appellants.

2. That the appellants should be put in actual possession of the occupancy holding and defendants 1 to 3 should be dispossessed therefrom.

3. That the appellants should receive Rs. 100 as damages.

2. The appellants also sued against the two defendants to whom the occupancy holding had been let by the zamindar after the ejectment of the appellants. Both the lower Courts have found that there was no evidence of fraud and we agree with the correctness of the finding. All that appears in the regular case is that when the revenue Court issued notice for the appointment of a guardian the notice was only issued to Bena who was proposed as guardian, and not to the two minor appellants or to their mother. It was further alleged that in that notice the suit was described as an ejectment suit, whereas it was properly a suit for arrears of rent. Evidence had been given by the ahlmad who wrote the notice to the effect that he wrote the words “ejectment suit” by a mere mistake. There is no evidence that there was any collusion between the ahlmad and defendant 1. When the summons was issued for the suit on Bena, the suit was correctly described as a suit for arrears of rent.

3. In various rulings, Dammar Singh v. Pirbhu Singh [1907] 29 All. 290, Ram Barechha Ram v. Tarak Tewari [1916] 14 A.L.J. 589 and Pokhpal v. Chhidda Singh [1911] 9 A.L.J. 653, it has been held that failure to issue notice to all parties and the appointment of a guardian merely amounts to an irregularity which does not justify a Court in setting a decree aside, In Beni Prasad v. Lajja Ram [1916] 38 All. 452 it was held that where an infant was made a party and properly represented in the case, the decree cannot be set aside by means of a, separate suit except upon proof of fraud or collusion on the part of a guardian. In the present case it is not alleged in the plaint, much less proved by evidence, that there was any fraud or collusion on the part of the guardian, Bena, with Lachhmi Narain, zamindar.

4. We consider, therefore, that no fraud has been proved in the present case; only an irregularity which is not material. It was further to be noted that it was also alleged by the minor appellants that the zamindar should have received the payment of the amount by money order which was returned unpaid. It was admitted that the money order sent was not sufficient to cover the amount of the claim with costs, and in these circumstances the zamindar was not bound to receive it. It is also apparent that after the passing of the decree for arrears of rent there was ample opportunity for the present appellants to have paid the amount of arrears decreed against them before the order of ejectment was passed.

5. Another point which we note is that the appellants could have brought a suit under Section 79, Act 2, 1901 for wrongful ejectment. That-being so, under S 167, Act 2 of 1901, the civil Courts could not take cognizance of a suit like the present which is to declare a decree in the revenue Court void and ineffectual on the ground that the proceedings of that Court were contrary to law. This view has been taken in Uman Shanker v. Bhagwan Din [1909] 7 A.L.J. 1064, a ruling with which we agree.

6. The appeal is dismissed with costs.

Mukerji, J.

7. I agree in dismissing the appeal with costs.

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