REOTI PRASAD Vs. HOTILAL

JUDGEMENT

(1.) This second appeal has come to us on a reference made by Mr. Justice Manchanda. The second appeal is by the plaintiffs. There were two plaintiffs Sri Reoti Prasad and Sri Nand Kishore. The suit was filed against three sets of defendants. The first set consisted of only one person L. Hoti Lal. The second set consisted of four persons Allahdiya, Ibrahim, Niyaz Mohammad and Ali Mohammad. The third set consisted of a person named Ganga Sahai. The land in dispute was situated in Mohalla Saral Mehar Singh alias Nai Basti in the town of Khurja and bore municipal No. 49. The plaintiffs alleged that they were the owners of the land and originally Khuda Baksh, the ancestor of that defendants second set, had on certain terms constructed a house on the land. They further alleged that in the year 1916 the father of the plaintiff No. 1 who was the owner of the land at that time filed a suit in the Small Cause Court for recovery of rent from Khuda Baksh and some of the defendants second set. The suit, according to the plaintiffs, was compromised and it was, agreed that the defendants second set would continue in possession as long as they paid annas eight per month as rent. The defendants second set had, the plaintiffs alleged, paid rent up-to 31-3-1946 but the rent subsequent to that date was still due. On 28-1-1948, however, those defendants had executed a sale deed in respect of the right of residence on the land and the materials of the house standing upon it in favour of the defendant first set. The plaintiffs alleged that the defendants second set were only tenants at will and had no right to transfer the house. The defendant first set had, therefore, no right to retain possession thereof. The relief they claimed was that the defendant first set be directed within a fixed period to remove the materials and in case of his failure to do so the materials may be removed and the plaintiffs may be awarded compensation over the land.

(2.) Three written statements were filed, one by the defendant No. 2, another by the defendant No. 1 and the third by the defendant No. 3. Various pleas were taken and the most important of them were that the defendants were permanent tenants of the land who had taken the land for building purposes and the plaintiffs were, therefore, not entitled to have the materials removed or to get possession over the land. It was pleaded that the plaintiffs were zamindars who had let out the land for building purposes and that there was a custom according to which the rights of the defendants were transferable. Limitation and the bar of Section 60 of the Easements Act were also pleaded.

(3.) The trial Court dismissed the suit holding that the defendants second set were in possession of the site as permanent tenants and had a right to transfer the house to the defendant No. 1 who was on that account not liable to be ejected. He did not empress any opinion on the other questions which were raised by the defendants. The plaintiffs want up in appeal to the learned Civil Judge. He agreed with the finding of the learned Munsif that the defendants second set were permanent tenants of the land and had a right to transfer the right of residence as well as the materials of the house to the defendant No. 1. He, therefore, upheld the decree passed by the learned Munsif. A cross-objection had been filed on behalf of the defendants before him. He allowed it.