PRABHU DAYAL MARWARI Vs. TINKARI BALA DASSI

JUDGEMENT

(1.) There are two appeals. These two appeals arise put of two suits between the same parties. In one, which was Title Suit No. 55 of 1962, the predecessor of the present respondents was the plaintiff and the present appellant was the defendant. In the other suit, which was Title Suit No. 86 of 1963, the present appellant was the plaintiff and the predecessor of the present respondents was the defendant. Both the suits were over the dispute between the parties regarding a property which was the common disputed property in both, the suits. The background of that dispute was the undisputed fact that Gour Chandra Das, who was the predecessor of the present respondents was the owner of the suit land and he inducted the present appellant Prabhu Dayal Marwari into possession of the suit land as a tenant by a contract of tenancy which has been brought in the evidence in the case as Exhibit F. In it there was a stipulation that the tenant will pay a monthly rent at first fixed at Rs. 9-8 annas per month and a hut will be constructed costs of which construction will be initially borne by the said tenant Prabhu Dayal Marwari, but the amount of the expenses of the construction will be adjusted with the rents payable by him and so long as the expenses of that construction are not wiped off the landlord would not get any cash rent but will be entitled to payment of rent only after the amount of the expenses for the construction which was described in that document as loan _.k was repaid to the tenant. There was also a stipulation therein for increasing the monthly rent payable in certain circumstances. That document was executed by the said Gour Chandra Das on 11th Jaistha, 1348 B.S. It is, also the common case of both the parties that during the time after that contract of tenancy and before the suit there had been an increase of rent to a rate of Rs. 16/- per month. According to the defendant that increase was because of the increase in the area of the land which was mentioned in that document Exhibit F to be an area measuring 22 cubits X 17 cubits to an area of 30 cubits X 19 cubits. The additional area, according to the defendant tenant, be added for enabling him to construct a proper structure to serve the purpose for which the tenancy was created. According to the landlord, he, however, did not admit that the additional area of land was included in the tenancy at all and according to him the increase in the rent was for other reasons and not for the reason of addition to the land in the area of the tenancy. However that may be, while the tenant was remaining in the occupation as such of the suit property there were monetary transactions between the landlord and the tenant which were said to be transactions of loan advanced by the tenant to the landlord. Thereafter, by a registered Kobala dated 28th Sraban. 1365 B. S. (13th August, 1958) the landlord sold the suit property to the tenant. This sale deed is Exhibit D in the case. On the same date the tenant executed an agreement by which he contracted to convey the property to the landlord if the latter repays the entire sum of Rs. 4,000/- which was the consideration money mentioned in the sale deed Exhibit D before the expiry of the month of Sraban, 1369 B. S. This agreement for re-conveyance is Exhibit 3 in the case.

(2.) Title Suit No. 55 of 1962 was instituted by plaintiff Gour Chandra Das fo r a decree for specific performance of the contract for re-conveyance of the suit property evidenced by Exhibit 3 on the averment that he had repeatedly requested the tenant to execute a deed of reconveyance by accepting the money that was offered, but the latter on various grounds and pretexts delayed the matter and ultimately gave out that unless the landlord would execute a deed of permanent lease in respect of the suit property in favour of the tenant he would not re-convey the property. In that suit a decree for specific performance of the contract for re-conveyance of the property was prayed for and also there was a prayer for Khas possession thereof and for recovery of a sum of Rs. 90/- as expenses incurred by the plaintiff for purchasing the stamp paper for the deed of re-conveyance and also for mesne profits.

(3.) The other suit, Title Suit No. 86 of 1963 was instituted by Prabhu Dayal Marwari for a decree for specific performance of the contract of an alleged permanent lease relating to the suit property and in the alternative for declaration that he had acquired non-eject-able non-agricultural tenancy right in respect of the suit land and also for a declaration that the landlord was not entitled to the reliefs prayed for in Title Suit No. 55 of 1962. There was also a prayer for permanent injunction restraining the landlord from proceeding with his suit.