Munshi Abdur Razzak vs Rai Bahadur Baijnath Goenka

Chapman, J.—These appeals arise out of suits for rent. The tenants'' defence was that the plaintiff had no title. The plaintiff had, purchased an ijmali share of an estate at a revenue sale in September 1901. The original proprietors brought a suit to set aside the sale at which the plaintiff had purchased. The suit succeeded in the first Court but was dismissed by the High Court in appeal. It finally succeeded on appeal to the Privy Council but although the original proprietors succeeded in their suit the finding is that they did not succeed in actually obtaining possession of this particular property. In these circumstances the learned District Judge held that until recovery of actual possession by the decree-holders, the plaintiff should continue to realise rents from the tenants. I am of opinion that this is the correct view to take.

It is contended in appeal before us, first, that the Privy Council having set aside the sale, the plaintiff ought not to be allowed to recover any rent. This contention does not appear to be valid. So long as the plaintiff remains in possession he should be entitled to continue to recover the rent, otherwise, as the learned District Judge points out, neither the plaintiff nor the persons who have failed to recover possession can realise the rents.

Then it is contended that the learned District Judge should not have held that the plaintiff was still in possession. The finding is based upon an order of the Subordinate Judge in a suit subsequently instituted. This evidence appears to have been admitted in appeal without objection. It was relevant evidence and in fact it was conclusive of the question whether the plaintiff was or was not in possession I am not disposed to interfere with the admission pf this evidence in first appeal. The result is that these appeals are dismissed with costs.

Jwala Prasad, J.

I concur.