MANOOLAL BALCHAND Vs. KALURAM GULABCHAND

JUDGEMENT

(1.) THIS is plaintiff's second appeal against a decree dated 27-8-1952 of the 2nd additional District Judge, Hoshangabad, reversing a decree of the Civil Judge, class II, Hoshangabad. The plaintiff's case is that on 5-2-1934 he had purchased the absolute occupancy plot Khasra No. 500/1, area 1 acre, of Patti No. 2, of village Meragaon, Tahsil and District Hoshangabad, from Abdulla Bhai and since then he has been in its possession. A license to use the site measuring 28 feet x 46 feet out of this plot for a dwelling house was granted in favour of one Babulal kumhar. The said Babulal was paying Rs. 2/- as license fee; and he paid this fee till 1947-48. He, then, sold the house on 15-5-1948 to the defendant-respondent by a registered sale-deed without the permission or consent of the plaintiff appellant. The plaintiff sued the defendant for possession of the site after demolition of the structure and removal of material. The trial Court came to the conclusion that the plaintiff is the owner of the said absolute occupancy plot and that Babulal was a mere licensee and as such, according to Section 56 of the Indian Easements Act, he could not transfer or sell the house in suit to the defendant. The trial Court, therefore, decreed the suit. The lower appellate Court reversed the findings and held that the plaintiff was not the absolute occupancy tenant of the said Khasra no. 500/1.

(2.) SHRI M. Adhikari, learned counsel for the appellant, contends that this finding is not based on proper evidence, and I have no doubt in my mind that in view of the entries in Khasra Panchsala (Sam-vat 1989-1992), Ex. D-4 (on page 44 of the paper- book), and the sale-deed, dated 5-2-1934 (Ex. P-4 at page 33), executed by Abdulla Bhai in favour of the plaintiff, this finding cannot be sustained. Even shri P. K. Tare, learned counsel for the respondent, frankly conceded that he was not in a position to justify this finding. He, therefore, urged that the trial Court's findings that (1) the plaintiff-appellant is the absolute occupancy tenant of Khasra no. 500/1 and that (2) Babulal was a licensee and was allowed to build a house on the plot should be taken to be correct.

(3.) THE question, then, arises : Can the plaintiff-appellant ask the defendant-respondent, who has purchased the house in question from Babulal, Licensee, to demolish the structure and remove the material ?