MANU/UP/0103/1938

Equivalent/Neutral Citation: AIR1939All263, (1939) 9 AWR 155

IN THE HIGH COURT OF ALLAHABAD

Decided On: 16.12.1938
Gaya Prasad Vs. Secy. of State
Case Note:
A. - Crown Grants Act, 1895, S. 3--Grant made by Crown--Tenancy Act,
Transfer of Property Act, or Contract Act do not apply to it.
When Crown has made a grant, it is not bound by any of the sections of the
Tenancy Act, or the Transfer of Property Act or the Contract Act.
B. - Grant--Crown grant--Condition of granite paying a certain rent--Mere fact
that no term is indicated does not make the grant permanent one.
When Crown has made a grant on condition that grantee shall pay a rent and
bring the land to his use and there is nothing to show that the grant was to
be a permanent one then the mere fact that no term is indicated does not
make it a permanent grant.
C. - Grant--Crown grant--Resumption of--Grant violated by certain acts--
Government may bring resumption suit--No limit of time applies to
Government for such a suit--Municipal Board's permission for sale of land and
to build upon it does not affect the right of Government to resume.
When there is nothing in the terms of Crown grant to make it transferable by
the grantee, for there is any provision that his heirs should hold it after him,
then if the grant is violated by the transfer of sale made by the heir of the
grate, the Government can bring a resumption suit and no limit of time
applies to it. The fact that Municipal Board has granted permission to the heir
of grantee to sell the land and to the transferee to build on the land does not
affect the right of the Government to resume.
JUDGMENT
Bennet, J.
1. This is a second appeal by the defendant Gaya Prasad against a decree for ejectment
of the defendant from a certain portion of nazul plot No. 663 enclosed in red lines in
mohalla Colonelganj, Allahabad city, which plot appertains to mauza Fatehpur-Bichhua.
It is common ground that this portion in red lines was granted by the Secretary of State
on 1st February 1887 to one William Barrett who executed a kabuliyat on that date. The
claim for the Secretary of State was that William Barrett died some fifteen years ago
and was succeeded by his heir a Miss Jane Bailey and on 22nd July 1928 Miss Bailey
executed a sale deed in favour of the appellant Gaya Prasad and that Gaya Prasad had
dug foundations for a building on this plot of land. The claim for the plaintiff was that
the transfer was illegal and alternatively if it were found that the transferor was entitled
to transfer as a grove-holder, then there should be ejectment, under the provisions of
Section 84, Agra Tenancy Act, of Gaya Prasad on the ground that he had done an act

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which was inconsistent with the purpose for which the holding was let. The main
ground however was that the grant was not transferable. The Courts below have found
in favour of the plaintiff. In appeal various arguments have been raised. One of these
arguments was that the Municipal Board bad granted permission to Miss Bailey for the
sale of the land and had granted permission to Gaya Prasad to build on the land and in
this connexion learned Counsel referred to the provisions of Section 188, Contract Act,
that an agent having authority to do an act has authority to do every lawful thing which
is necessary in order to do such act. This defence of fluency had not been taken in the
Court below. It is true that the Assistant Collector in his judgment said that the plaintiff
alleged that the land in dispute was nazul administered, by the Municipal Board but we
find no such allegation in the plaint find this is apparently due to some
misunderstanding and learned Counsel for the appellant did not show any such
admission on behalf of the plaintiff on the record. The Municipal Board grants
permission for building in the ordinary course of affairs but it does not follow that its
permission Us in regard to nazul. In any case the Section of the Contract Act on which
learned counsel relies has no binding effect on Government for the simple reason that
the terms of the Crown Grants Act (15 of 1895), Section 3, are as follows:
All provisions, restrictions, conditions and limitations over contained in any
such grant or transfer as aforesaid shall be valid and take effect according to
their tenor, any rule of law, statute of enactment of the Legislature to the
contrary notwithstanding.
2. The Crown therefore is not bound by any of the Sections of the Tenancy Act or the
Transfer of Property Act or the Conifer-act Act in the present case. Regard must be had
by the Courts to the terms of the grant which are admittedly here shown by the
kabuliyat of 1st February 1887. We do : not think that the point is of any importance as
to whether the small piece of Ground 70 ft. by 20 ft. was granted for the purpose of a
flower garden or for the purpose of adding it to the existing grove of William Barrett
which is mentioned in Certain robkars of the previous year. The rant does in fact refer
to trees. But, even if the land was to be used as a grove the tenant would not get the
rights of a grove-holder since the law in regard to groves could not override Section 3,
Crown Grants Act. It is only by analogy that any of these Sections could be applied. As
regards the grant being transferable or heritable, learned counsel for the appellant
relied on the words
If in any year I do not pay the above sum... the Collector will have the right to
have it realized... from the property of the executant or his heir or legal
representative or any person in posessition of the land without bringing any
suit in the Civil Court.
3. This appears to be merely a provision to finable Government to realize the rent in the
year in which the tenant dies and the grant is not made to the tenant and his heirs or
assigns. The grant is merely that William Barret shall pay a rent of Rupees. 3-12-0 a
year and shall bring the land to his use. There is nothing to show that the grant was to
be a permanent one. The mere fact that no term is indicated does not make a
permanent grant. A grant is resumableby Government at any time and there is nothing
in the terms of this grant to make it transferable by William Barret, nor is there any
provision that his heirs should hold after him. No limit of time applies to Government in
its resumption of a grant. In the present case the suit has been brought for resumption
and there is no reason whatever why it should not be granted. It may be noted that the
grant has been violated by the transfer by sale of 22nd July 1928 and any sanction of
the Municipal Board would not make that transfer valid. Secondly, the grant was;

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violated by the appellant digging foundations with the intention of making a building.
The grant is not for the purpose of making a building but for the purpose of planting a
garden or grove (lagane bagb.'). Thirdly, the grant was violated by Gay a Prasad, the
present occupant, setting up title in himself which was in issue before the Assistant
Collector and was the subject of a reference to the Munsif and was again the subject of
a claim apparently before the-lower Appellate Court where the appellant claimed to have
heritable and transferable-rights. As regards the power of Municipal-Boards the
quotation of the Court below from the Municipal Manual, p. 261, shows that "Nazul is at
all times liable to resumption by the Government." Therefore no matter what action is
taken by the Municipal Board the power of Government to-resume the nazul remains.
For these reasons we consider that the Court below was correct in decreeing this suit
for resumption, and we dismiss this second appeal with, costs.
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