SHIV DUTT Vs. GHASITA

JUDGEMENT

(1.) This is a plaintiffs appeal It arises out of a suit for possession of land and recovery of arrears of rent for a period of six years. The facts are these : On 25-2-1891, a registered 'quabuliat' was executed by the predecessor-in-interest of Phonda, defendant 1, in favour of the plaintiffs' predeeessor-in-title & under this 'qabuliat' payment of rent at Rs. 3/- per annum was agreed upon. Defendants 2 to 4 are the sub-tenants of the land on behalf of Phonda. Under the terms of the 'qabuliat Phonda was entitled to make 'khain' constructions on the land and the value of the contructions was not to exceed Rs. 50/-. It was also provided in the 'qabuliat' that, if at any time the owner of the land desired to obtain back possession over the land, Phonda, would receive Rs. 50/- for the Shiv Dutt and Anr. vs. Ghasita and Ors. (03.12.1951 -ALLHC) Page 2 of 5 (03.12.1951 -ALLHC) Page 2 of 5 constructions made by him. Phonda took possession of the land and made certain constructions thereon. On 2-5-1945, Phonda executed a sale deed transferring the house, which he had constructed on the land, along with its site, to Ghasita, defendant 5. These facts have not been disputed before me.

(2.) After the execution of the sale deed by Phonda in favour of Ghasita in 1945, the plaintiffs served a notice for ejectment upon the defendant, apparently on the ground that the execution of the sale deed by Phonda in favour of Ghasita amounted to assertion of his title and denial of their title, which had the effect of determination of the lease by forfeiture. Thereafter, the plaintiffs instituted the suit, which has given rise to this appeal. In the plaint also they alleged that the lease was determined by forfeiture; consequently, the defendants were liable to ejectment. In the alternative, it was alleged, in the plaint that the plaintiffs were also entitled to the relief claimed on the basis of their, title.

(3.) The suit was contested by Ghasita, defendant 5, alone. The defence put forward by him was that he had purchased only the materials of the house standing on the land in dispute; that the transfer of the proprietary right in the land was never contemplated by the parties to the sale deed; that the lease was not determined by forfeiture; that he was entitled to the benefit of the provisions of Section 114, T. P. Act; that Phonda and after the transfer by him in his favour he was the permanent lessee of the land in dispute and as such he was not liable to ejectment; and that the notice issued by the plaintiffs was invalid.