1972 PLP 588 (SCMR)

It maybe stated here that the lease has been proved by Misle Haqiyyat of 1895‑96, and the order of the Judicial Commis sioner passed in 1907 (8xh. P. W. 1/5). There is nothing to show mat this lease was ever terminated. The parties, however, differed on the following points:‑‑ (1) While the plaintiffs say that the sale‑deed dated 12‑7‑1912 conveyed the lease hold rights, originally held by Ilyas, to Khan Bahadur (predecessor‑in‑interest of the defendants Banaras and his brothers) and the latter came into possession as lessees, the petitioner contends that under the said sale, he was only assigned the rights to receive the compensation money amount ing to Rs. 2,160. (2) The plaintiffs‑respondents say that the aforesaid lease hold right had been renewed from time to time, and it was so done for the last time in 1929‑30 and that the annual rent was Rs.

150. The defendant‑petitioner disputes this. (3) The defendant‑petitioner claims that by a mutation in 1938 the occupancy rights were mentioned in his name and in the names of the defendants. The plaintiffs‑respondents dispute this and say that they were not parties to such transaction. (4) The defendant‑petitioner controverts the allegation of the plaintiffs‑ respondents that they received rent up to the year 1951. The learned Judges of the High Court found that consequent upon the death of Mir Ahmad, his son and grandson succeeded to the occupancy right and that this was evident from the Misle Haqiyyat of 1895‑9b (Exh. P. W. 1/6) and the jamabandis of 1929; 1931‑32 and 1936‑

37. In the aforesaid Misle Haqiyyat Ilyas was recorded as in possession as a lessee of the occupancy tenant. In the jamabandi of 1919‑20, again, the occupancy tenant has been mentioned as a lessor. Similarly in the jamabandi of 1929‑30 the occupancy tenant has been mentioned as lessor. In the jamabandl of 1931‑32 the occupancy tenants are shown as lessors while Mir Ahmad and Ghulam Jilani, etc. are shown as lessees. In the rent column it has been stated that no rent was being paid and that mortgage was claimed. The High Court found this part of the jamabandi as not true. In the jamabandi of 1936‑37 occupancy tenants are mentioned in the column for cultivation and the sons of Bahadur appear as tenants‑at‑will under them. Again in column for rent it is stated that rent is not paid because they are occupancy tenants. This portion of the jamabandi has been found by the High Court to be incorrect. It has been contended before us on behalf of the petitioner that his predecessor had purchased only the decretal amount and not the lease‑hold right. The learned Judges of the High Court held against this contention. They have rightly observed that no man in his senses would pay Rs. 2,500 to secure the mere right of realising a sum of Rs. 2,

160. The aforesaid sale‑deed (Exh. D. W. 1/1) always supports this vie‑v. On a consideration of the evidence, the learned Judges of the High Court have held that the petitioner held as a lessee under the occupancy tenant. This finding is based upon the evidence and we are unable to find any fault with it. It has next been contended that the civil Court had no jurisdiction in the matter to try the suit. The petitioner having repudiated the tenancy and set up the title himself, there was no other alternative but to file a suit in the civil Court. There is, therefore, no force in the contention that the civil Court had no jurisdiction in the matter. The cross‑objection having been dismissed it has been contended that the High Court was not competent to reduce the amount of the compensation awarded to the petitioner from Rs. 7,600 to Rs. 5,

705. Under Order XLI, rule 33 of the Code of Civil Procedure, the Court possessed the necessary power to reduce the compensation. The rule is clear and it is in these terms:‑ "The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection." The High Court held that a mistake about the amount of compensation had crept in because of the failure on the part of the trial Court to bear a conscious application of its mind upon certain patent facts. We, therefore, do not think that the High Court lacked jurisdiction to reduce the compensation irrespective of the dismissal of the cross‑objection. There is no substance in this petition and it is, accordingly, dismissed. Petition dismissed,