PITAMBER GOVINDA BHAVSAR Vs. ABDUL GAFUR ABDUL RAJAK

JUDGEMENT

(1.) THIS is an appeal by the original defendant No. 5 against the appellate judgment dated 31st December 1962 of the learned Assistant Judge, Jalgaon. Respondents 1-A to 1-D are the heirs and legal representatives of the original plaintiff. Respondent No. 4 is the heir and legal representative of the original defendent No. 3. Respondents Nos. 2. 3 and 5 are respectively the defendants Nos. 1,2, and 4. They have not appeared.

(2.) ON 8th May 1946 the plaintiff granted a lease of an areas admeasuring 115 feet x 125 feet out of survey No. 284/1 in Pachora. District Jalgaon, to the defendants 1 and 2 for constructing a cinema house thereon by lease deed Ex. 54. On 31st December 1948 defendants 1 and 2 assigned their leasehold rights to defendant No. 3 who constructed a cinema house on the said land. He gave the cinema running it. On 22nd November 1956 the defendant No. 3 assigned the leasehold rights to defendants Nos. 4 and 5. It appears, the defendants No. 3 had not paid rent to the plaintiff. Therefore in 1955 the plaintiff filed against the defendant No. 3 a suit for recovery of arrears of rent. The defendant NO. 3 thereafter paid up the said arrears.

(3.) ON 9th June 1958 the plaintiff filed against the defendants Nos. 1 to 3 the suit from which the present appeal arises in the court of the learned Civil Judge. Junior Division, Chalisgaon, for recovery of possession of the suit land alleging that the lease Ex. 54 was invalid being in contravention of Section 40 of the Bombay Agricultural Debtor's Relief Act, 28 of 1947 (hereinafter referred to as to B. A. D. R. Act ). The plaintiff contended that the defendants Nos. 1 to 3 were therefore in unauthorised or illegal possession of the suit property and were liable to handover possession to him.