SAVITRI DEVI Vs. KANHAIYA

JUDGEMENT

(1.) THIS is a plaintiff's second appeal in a suit for possession over a piece of land after removal of the constructions raised thereon by the defendant-respondent and recovery of Rs.33/- as arrears of rent and pendente lite and future damages for the use and occupation of land at the rate of Rs.11/-per year. THIS suit was decreed by the trial Court, but the lower appellate Court reversed the same and dismissed the suit. The following are the facts - According to the plaintiff the defendant and his mother took the land from the plaintiff on 28th July, 1942 for one year and agreed to pay the annual rent of Rs.11/- regularly every month. The transaction was witnessed by a rent note dated 28th July, 1942. The defendant had constructed a Kachcha house on the said land with the plaintiff's permission and was living in it. The rent was not paid fron 28th July, 1961, inspite of repeated demands hence the plaintiff terminated the defendant's tenancy by notice dated 29th August, 1964. The defendant did not vacate and deliver possession to the plaintiff nor did he pay the rent in arrears; hence the suit. According to the defendant, the land was taken in the year 1937 from the plaintiff's father under a registered lease by the defendant's mother along with certain other persons. It was pleaded that the suit was-not maintain able in the abeence of the other co-lessees; and the service of a valid notice under Section 106 of the Transfer of Property Act, was also denied. The defendant further pleaded that after the abolition of the Zamindari in the urban areas he had become the owner of the land as the bhumidhar thereof. The trial Court formed as many as 11 issues. It held that the defen dant was a tenant from month to month and decieed the suit for possession after removal of the constructions and for arrears of rent as also for penden-telite and future damages for the use and occupation at the rate of Rs.11/-per year. Before the lower appellate Court two points were raised for considera tion, firstly, whether the plaintiff's father Chiranji Lal had granted the land on a permanent lease to the defendant for the construction of house and if so, whether the defendant-appellant cannot be ejected from the land and the constructions therein, in view of the provisions of Section 60 of the Easement Act, and secondly, whether the defendant became Bhumidhar of the land after the enforcement of the U. P. Urban Areas Zamindari Aboli tion and Land Reforms Act. The lower appellate Court found that it was admitted that Chiranji Lal, the plaintiff's father was the owner of the land and he let out the same by a registered lease dated 3rd August, 1937 (Ext. A-l) to the defendant along with Jhandu, Mool Chand, Tej Ram, Munna Lal and Baldeo. The land was let out jointly to these persons for construction of houses; that they constructed their houses on different portions of the land according to their convenience. The total area of the land let out by Chiranji Lal was 70 square yards out of plot No. 306. The constructions could be pucca or kachcha. The lease was for a period of ten years and the rate of rent was Rs70/- per annum but the rent was payable monthly at the rate of Rs.5/13/-. The lessees did not have any right to transfer the construction over the land to any one, nor were they given any right to sub-let. According to the defence case before the lower appellate Court the plaintiff could not have broken the unity of the lease and filed a suit against the defendant alone and the suit was defective for that reason. On the other hand, reliance was placed on behalf of the plaintiff on the rent note of 1942 executed by the defendant agreeing to pay Rs.11/-as one year's rent but regularly every month. THIS according to the plaintiff amounted to a novation of the contract and the plaintiff had a right to proceed against the defendants alone separately for rent and ejectment in case he failed to comply with the terms of the lease. The lower appellate Court held that rent note of 1942 was inadmissible in evidence and that being so, the only document which remained on the record was Ext. A-l, namely, the registered lease of 1937 which was executed in favour of a number of persons and, therefore, the frame of the suit was defective. The argument based on Section 60 of the Easements Act was not accepted by the lower appellate Court on the ground that the land had expressly been leased out under the deed of 1937. It was also held by the lower appellate Court that the lease was not permanent but for a definite period of 10 years. On the second point, the lower appellate Court held that since the land had not been demarcated as an agricultural area no rights could accrue to the defendant under the U. P. Urban Areas Zamindari Abolition and Land Reforms Act. However, in view of the finding that the frame of the suit was defective, the lower appellate Court allowed the appeal and dismissed the suit. Mr. V. K. Gupta, learned counsel for the appellant has urged before me that the lower appellate Court went wrong in holding that the frame of the suit was defective. The 10 years period of the lease granted in 1937 had not expired and the defendant was continuing as a lease of the land when the rent note of the year 1942 was executed. The rent note did not create any interest in the land. It merely apportioned the rent between the several co-lessees and determined the rent payable by the defendant sepa rately for a separate and distinct portion of the land occupied by him. According to the learned counsel it was, therefore, admissible in evidence and the view of the lower appellate Court that the unity of the lease was broken by the plaintiff unilaterally is incorrect. The unity of the lease was broken by the agreement between the plaintiff and the defendant to pay the rent separately at a fixed rate for a separate portion of the land. It was a case of partition between the several co-lessees to which the plaintiff assented. It did not create any fresh lease and the rent note of 1942 only witnessed an agreement between the landlord and tenant about the rate of rent payable by the tenant for the separate portion of the land occupied by him. It did not even bear the signature of the landlord. There is force in the contention raised by the learned counsel for the appellant. Unity of the lease was broken by the mutual agreement between the landlord and the tenant and that being so the frame of the suit cannot be said to be defective. Learned counsel for the defendant-respondent tried to show that the defendant had become a bhumidhar inasmuch as the lease was for building purposes and under Section 17 (1) (b) of the Act "all lands in an agricultural area held on lease duly made before 1st day of July, 1955, for the purpose of erecting building thereon, shall be deemed to be settled by the State Government with such intermediary, lessee, tenant, grantee or grove-holder, as the case may be, who shall, subject to the provisions of this Act, be entitled to take or retain possession as a baumidhar thereof. "However, the answer to the argument of the learned counsel lies in the fact that it has been found that the land in question had not been demarcated as an agricultural area under the pro visions of the Act and, therefore, the defendant could derive no benefit from the provisions of Section 17 (1) (b) of the Act. The land was Abadi and did not vest in the State under Section 10 of the Act. In the result the appeal succeeds and is allowed with costs. The judg ment and decree of the lower appellate Court are set aside. The decree of the trial Court is restored and the plaintiff's suit shall stand decreed in terms thereof with costs throughout.,