SITA RAM JAISWAL Vs. RAI AMARNATH AGARWALA

JUDGEMENT

(1.) This is an appeal by special leave from a judgment of the Allahabad High Court dismissing a second appeal affirming the decree granted by the first appellate Court.

(2.) The facts may be stated. A suit was filed under Section 172 of the U.P. Tenancy Act 1939, hereinafter called the 'Act', by the plaintiff against four defendants for ejectment. It was alleged in the plaint that defendants 3 and 4 were previously the original tenants of the plots in dispute which were situate within the limits of the town area of Phulpur in the district of Allahabad. The original tenants relinquished their tenancy rights and gave up possession. After this a patta for agricultural purposes was executed in the year 1368 Fasli in favour of defendants 1 and 2 whereunder they got rights of agricultural tenants. Defendants 1 and 2 in violation of the provisions of the patta and the Act constructed a building on the plots in dispute and let that out to the State Bank of India, Phulpur. It was alleged that for the aforesaid reason the tenants namely defendants 1 and 2 were liable to be ejected. Defendants 3 and 4 were imploded as proforma defendants. In the written statement it was pleaded, inter alia, by defendants 1 and 2 that the building had been constructed by them with the sanction of the District Collector on April 4, 1960 when the Collector was the Receiver of the Phulpur Estate in which the demised plot was situate. The suit was dismissed by the Judicial Officer (City) Allahabad on the ground that the Collector who was acting as Receiver of the disputed land had given his consent for the construction of the building by the defendants which amounted to consent by the landholder for an improvement within Section 65 of the Act. The additional Civil Judge on appeal, however, held that there was nothing on the record to show that the Collector gave his permission in his capacity as Receiver for construction of the building. The appeal was allowed by him and the suit for ejectment was decreed.

(3.) The following points were agitated before the High Court on behalf of the defendant-appellants: