STATE OF MADHYA PRADESH Vs. GANGA DEVI

JUDGEMENT

(1.) THESE four second appeals by the State of Madhya Pradesh have been filed as the landlord of four plots of land 2/13, 2/15, 2/20 and 2/22 forming part of Rewa Koth at Allahabad against four tenants. They arise out of four separate suits for ejectment and arrears of rent, the leading case being Second Appeal No. 81 of 1965, which arises from suit No. 311 of 1963 of the Court of the Munsif West, Allahabad. The four cases being similar, and the issues arising therein being identical, they were tried together by the Court of the 1st Additional Munsif, Allahabad who decreed them all by the judgment dated 30th January, 1964, The lower appellate Court allowed the appeals there from and the dismissed the suits for ejectment and pendent elite and future damages, but maintained the decree for recovery of arrears of rent only upto the date of the institution of the suits. The principle question which arises for determination in these appeals in whether the status of the defendant-respondent was that of tenant or of licensees who had raised permanent constructions over the plots of land originally Jet out to them quite some years ago. The plots were originally let out on the terms contained in two sarkhats, Ext. 3 and Ext. 4. The first of these Sarkhats Ext. 3 is dated the 30th October, 1937. That relates to plots No. 13 and 15 which are the subject matters of suits Nos. 311 and 315 of 1963. It was executed by Ram Kishan Lal and his father Ram Jiyawan Lal. The two defendant-respondents Smt. Ganga Devi and Smt. Dullo are the widows of Ram Jiyawan Lal and Ram Kishun Lal respectively. The other Sarkhat is dated 10th May, 1944 and was executed by Mewa Lal. It relates to plot No. 22 which is the subject matter of suit No, 318 of 1963. The Sarkhat relating to plot No. 20 which is the subject matter of suit No 316 of 1963 does not appear to have been filed but it may be assumed that the terms on which Mewa Lal to whom this plot was let out were the same as those under which plot No. 22 was let out to him. The plaintiff appellant pleaded that the defendant-respondents were the tenant of the respective plots of land let out to them and in spite of repeat ed demands, they failed to pay the rent due against them respectively for several years. The tenancy was accordingly terminated by notice, but they did not comply with the demand for possession, nor did they pay the rent in arrears, instead they had illegally sub-Jet portions of the premises let out to them, hence the suit. The defence was, in suit No. 311 of 1963, relating to plot No. 15 which was covered by the Sarkhat Ext. 3 dated 30th October, 1937 that the plot in question was given to the defendant more than 30 years ago by the former Ruler of Rewa for building purposes and accordingly the defendants built houses thereon which are standing over the land for more than 30 years, and that the rent was collected by different authorities at different times and could not be paid because of confusion about the person entitled to recover the rent. It was pleaded that the defendants were not liable to be ejected from the land. The following were the issues on which the parties went to trial: (1) Whether the defendant is a defaulter in payment of rent ? (2) Whether the defendant has sublet the accommodation in suit ? (3) To what amount of rent and damages is the plaintiff entitled ? (4) To what relief, if any, is the plaintiff entitled ? (5) Whether the suit as framed is maintainable ? On the first issue, the trial Court found that U. P. Act III of 1947 did not apply to the case; that the terms of the Sarkhat provided that if the rent is due for two months then the tenants can be ejected even without notice and that the plaintiff could eject the defendants with a notice of 15 days and that a notice had validly been given to the defendants terminating the tenancy under Section 106 of the Transfer of Property Act, and that the defendants were defaulters in Payment of rent in accordance with the terms of the Sarkhat. On the second issue the trial, Court held that the defendants had sublet different parts of the accommodations to different persons and were liable to be evicted on that ground also under the conditions of the Sarkhat. On issue No, 3 the trial Court found that the plaintiff had proved the amount of the arrears of rent claimed, on issue No. 5, that the suit was maintainable, and on issue No. 4 that the plaintiff was entitled to the relief claimed. The lower appellate Court considered only one question, namely whether the defendants were liable to ejectment. It considered the terms of the Sarkhati, believed the case of the defendants that their houses exist on the plots for more than 30 years; that the houses were of a permanent nature: and that, although the plaintiff had a representative posted at Allahabad as incharge of its estates, since 16th August 1953, no objection was 'taken by the plaintiff to the existence of the houses, and from this conduct of the plaintiff and the fact that the houses had existed for long it may be pre sumed that they were built with the permission express or implied of the predecessor-in-title of the plaintiff State, and that the licence of the defendants had therefore, become irrevocable under Section 60 of the Easements Act. The argument raised on behalf of the plaintiff before the lower appellate Court that the case of irrevocable licence had not been plead ed by the defendants and could not, therefore be entertained by the Court at that stage, was met by the lower appellate Court by saying that the defen dants had stated the relevant facts in their written statement and had pleaded that they were not liable to ejectment on those facts and that, therefore, the plea put forward by them was sufficient inasmuch as they were required to plead only material facts and not inference from facts. The lower appellate Court further found that even if a decree for ejectment were to be passed against the defendants, it would be in executable in view of the fact that the plaintiff had not claimed any relief for demolition of the houses and the materials of the houses could not be forcibly removed from the site and that on this ground also it was not proper to pass a decree for ejectment, in any of these cases. None of the defendant-respondents were represented in this Court in spite of due service of the notices of the appeals on them. Mr. K. B. Mathur, who appeared for the plaintiff-appellant in all the four appeals, submitted before me that the terms of the Sarkhats on which the defendants were let into the respective plots of lands, clearly showed that they were tenants and that they had committed a breach of the several terms thereof namely, that against subletting vide clause 6 that against raising any constructions whether Pucca or Kachcha vide clause 8 and that requiring them to pay the rent regularly vide clause 111 and that being so they were clearly liable to eject ment from the plots of land let out to them, respectively. Further, the learned counsel reiterated the contention that the case of licence was neither pleaded nor in issue and the lower appellate Court was in error in allowing it to be raised before it and even so by up-holding that case on more conjectures and surmises without there being any evidence to support the same. The first thing which strikes me is that the basic plea raised by the defendants in paragraph 8 of the written statement was that the land was taken for building purposes from the former Ruler of Rewa. The defendants did not dispute the fact that they were originally let into the land on the terms of the Sarkhat Exts. 3 and 4. In face of these Sarkhats, which contain a written record of the terms on which the defendants were let into their respective plots of land, only these Sarkhats could be looked into to find out the terms on which the defendants were let into the land, The lower appellate Court has not referred to any evidence of any permission, express or implied for raising permanent buildings by the defendants on the plots of land let out to them respectively. It has merely relied on the fact that the buildings have been in existence for more than 30 years and that the plaintiff did not object although it had a representative posted at Allahabad since 16th August 1953. I may add, that although clause 6 in each of the two Sarkhats. Exts. 3 and 4 provides that the tenant shall not have any right to raise any pucca or kachcha construction or make any addition or alteration on the land, and if he did so he would be liable to ejectment without being entitled to any compensation, the plaintiff did not make any point out of it in the notice that was served under Section 106 of the Transfer of Property Act, and did not raise any plea to that effect in the plaint. Nevertheless, there is no evidence to show that the plaintiff or its predecessors-in interest ever consented to the raising of the construction. All that can be said is that the plaintiff, and before it his predecessor-in-interest acquiesced in the said breach of covenant on the part of the defendants. The question is, does the same amount to acquiescence, sufficient in law to non-suit the plaintiff. But the plea of building on the land without permission as a ground for ejectment not having been taken in the plaint, one could not expect the defendants to raise a counter plea of acquies cence. In view of the aforesaid facts and circumstances, I think the lower appellate Court was in error in having decided these cases on the ground that the defendants had by implication acquired an irrevocable licence for building purposes. There was no evidence to support the inference and there could be no evidence in the absence of a plea to that effect. As to the allegations of fact relied upon by the lower appellate Court, it is sufficient to say that the Sarkhat in the two cases in which Mewa Lal was the defendant was less than 20 years old when the two suits against him were instituted, and that in the two cases against Smt. Dullo and Smt. Ganga Devi was less than 30 years old when the two suits against them were instituted and it was not suggested that they had entered into the land otherwise than on the terms contained in the Sarkhats and since the two Sarkhats prohibited raising of any construction, whether pucca or kachcha on the plots of land let out to them respectively it could not be said that the plots of land were let out to the defendants for building purposes. The plea raised by them was thus Incorrect. It was not pleaded that the defendants had obtained any permis sion later on or that they must be deemed to have obtained the necessary permission by implication, that is, by the acquiescence of the plaintiff and its predecessor in title. It is not known when the buildings in the four plots were raised. It may be that the defendants took advantage of the confusion alleged by them to have prevailed on account of the succession of the rights of the ruler of Rewa in the plot since independence period. If the defendants had raised constructions prior to the merger of the State of Rewa they could have easily pleaded or proved that fact. The statement of Sita Ram D. W. 1 who was aged 30 years when be was examined on 28th January, 1964 and who appealled as a witness for Mewa Lal alone that the houses on plot No. 2/20 and 2/22 were constructed 30 and 35 years ago could not be believed in face of the Sarkhat executed by Mewa Lal himself which as noticed above is dated 10th May 1944 and further, in view of the fact that the witness admitted that the houses were constructed before he attained the age of discretion and did not know when they were constructed. The other witness D. W. 2 Radhey Mohan aged 20 years who appeared for Smt. Dullo and Smt. Ganga Devi chose not to say anything about the date of the construction of the houses on plot No. 2/13 and 2/15. He frankly stated that he did not know when they were constructed. None of the defendants appeared personally to prove when the buildings were constructed. There was thus complete lack of evidence on the points, and the lower appellate Court was in error in holding that the defendants had acquired an irrevocable licence by implication in view of the fact that permanent houses had been in existence over the plots in suit for more than 30 years. Another ground relied upon by the lower appellate Court for refusing the decree of ejectment was that the plaintiff had not asked for demolition of the buildings and that a decree for possession if passed in its favour would be inexecutable. Here too the lower appellate Court has proceeded on a misconception of law. The plaintiff is the owner of the plots of land. The defendants were the tenants. The tenancy having been terminated, the plaintiff is entitled to possession. If the defendants have raised any construc tions on the land, it is open to them to remove the same, but if they do not do so inspite of the decree of ejectment against them, the choice is theirs. The decree does not lose its force on account of any wrongful conduct of the defendants. In the result all the four appeals succeed and are allowed with costs. The judgments and decrees of the lower appellate Court in the four suits which gave rise to the four appeals before the lower appellate Court are set aside and the decree of the trial Court in all the four suits are restored with costs throughout. It shall, however be open to the executing Court to allow the defendants such reasonable time as may be absolutely necessary to remove their constructions and the Malwa from the land in suit in each of the four cases, if the defendants make a proper application in that behalf and under take to do so within the time so fixed for that purpose.