AMBIKA DEVI Vs. SACHITA NANDAN PRASAD

JUDGEMENT

(1.) This second appeal by the defendant arises out of a suit in ejectment and also for recovery of arrears of rent. The subject-matter of the litigation is a piece of land comprised in municipal plot No. 349, measuring 0.13 acre, situate within the Patna Municipal Corporation bearing holding number old 6B and new 7 of Ward No. 23 in circle No. 145. For the purpose of my judgment, I can state the facts shortly, which in broad outlines are not much in dispute. One Bulaki Kunjra was a tenant of this land. He constructed a house there on and lived therein on payment of a monthly rental of Rs. 3/8/-. He died in 1925 or 1926 and was succeeded by his sons, Abdul Rauf, Hafiz, Shakur and Hamid. Harinarain Lal Choudhary acquired this holding by purchase by means of two registered instruments, one executed by the maternal grand sons of Bulaki, on 6-12-1941, and the other by his sons on 12-7-1943. The plaintiff, who is the sixteen annas landlord, recognised this transfer and mutated the name of the purchaser Harinarain in his sherista in place of the recorded owners. Similarly, in the municipal records also his name was mutated. Thereafter, he demolished the old structures and constructed in their place a double-storeyed pucca house. On his death, he was succeeded by his widow Srimati Am-bika Devi, the defendant, who is the appellant before this Court. On 7-7-1952, the plaintiff served on the defendant a notice to quit the house by 30th day of Shawan 1359 fasli (corresponding to 5-8-1952) and remove the Amlas (structures and materials) from the disputed land. This not being done, the plaintiff commenced the present action to eject her and recover arrears of rent at Rs. 3/8/- per month from 1st day of Jeth to 30th day of Shawan 1359 fasli, on the allegations that Bulaki. or his legal representatives and successors had no permanent interest in the land, but that they were mere tenants-at-will and were thus liable to be evicted. The defendant-appellant resisted the plaintiffs claim, asserted permanent tenancy in the land and also pleaded estoppel.

(2.) The learned Munsif found in favour of the defendant and held that she had acquired permanent tenancy in the disputed holding and was, therefore, not liable to eviction. He, however, granted the plaintiff a modified decree for arrears of rent only. On appeal before the learned Subordinated Judge, the decree of the Court of first instance was reversed. Two points were urged before him, first, whether the defendant was a tenant-at-will or a permanent tenant, and, second, whether the plaintiff was estopped from challenging the defendant's title. Both these points were decided in favour of the plaintiff, and the suit was decreed with costs.

(3.) The grounds taken before the appellate Court have been reiterated before us. Mr. Lalna-rayan Sinha appearing for the appellant first contended that the facts and the circumstances, as found by the Courts below, inevitably led to the inference that the tenancy was permanent. His argument was : The tenancy was unknown and its origin was lost. It was a case of lost grant. Having regard to the status of Bulaki, the structure was of Substantial character. It was a full-fledged residential house containing latrine, a part of it being used as a shop. It was heritable, and in course of this long period, there has been succession and inheritance recognised by the landlord plaintiff. Reference was made to the two sale deeds executed in favour of the defendant's husband by BuIaki's heirs. The rate of rent paid for the holding was uniform throughout, being Rs. 3/8/- per month. The defendant's husband constructed a double-storeyed pucca house in 1943 to the knowledge and without objection from the plaintiff. These circumstances may, in an appropriate case, indicate permanent tenancy. But, in this particular case, the very foundation of his argument is lacking. It is not a case of lost grant. According to the finding of the learned Subordinate Judge, Bulaki was inducted upon the land sometime between 1901 and 1904, that is to say, after the passing of the Transfer of Property Act. That being so, the defendant is immediately confronted with the provisions of Section 107 of the Act, which provides that