BULKAN SAH Vs. GANGA DEVI NATHANI

JUDGEMENT

(1.) Defendants 1 to 7 preferred First Appeal No. 504 of 1955 against the decree passed in Title Suit No. 13/61 of 1953/54 by the 2nd Additional Subordinate Judge, Muzaffarpur, but defendants 1 to 4 compromised (his appeal in this Court and thus this appeal has been argued only on behalf of defendants 5 to 7. The miscellaneous appeal and the application in revision were filed by Dhanraj Nathani (plaintiff 1) against the orders passed in the execution case and the detailed facts will be referred to later on. These three cases have been heard together and will be governed by this judgment.

(2.) Two plaintiffs, namely, Dhanraj Nathani and Mandira Mukherjee (widow of late Achindra Chandra Mukherjee instituted a suit out of which this appeal arises for ejectment of the defendants from the land and structure bearing holding Nos. 534, 535 and 536, within Circle No. 2, Ward No. 8, in the town of Muzaffarpur, and for a sum of Rs. 2741/5/- as damages till the institution of the suit besides future damages. Plaintiffs' case was that Jogendra Chandra Mukherjee was the owner of these three holdings commonly known as Andigola situate in Chatabazar Saraiyaganj, within the town of Muzaffarpur. Jogendra Chandra Mukherjee left two grand-sons, Sachindra Chandra Mukherjee and Achindra Chandra Mukherjee, and a grand-daughter Tamalika Mukherjee, Achindra Chandra Mukherjee was married to Mandira Mukherjee (Plaintiff 2). They were governed by Dayabhag School of Hindu Law and on the death of Jogendra Chandra Mukherjee, these holdings devolved on his two grand-sons In equal shares as their father had died before. Achindra Chandra Mukherjee died on 19-2-1948 and his widow (plaintiff 2) got the share of her husband. On 9-7-1951, she and Sachindra Chandra Mukherjee executed a deed of family arrangement whereby she got these holdings with structures thereon having an area of 1 bigha 6 kathas (specified in schedule 1 of the plaint). Defendants were monthly tenants of the premises in those holdings and they were paying monthly rent to plaintiff 2 and her predecessors-in-interest-at the following rate: <FRM>JUDGEMENT_214_AIR(PAT)_1964Html1.htm</FRM> Plaintiff 2 required a sum of Rs. 10,000 for erecting a temple In the name of her husband for the benefit of his soul and for performing 'sradh' of her deceased husband at Gaya and thus she leased out the entire Andigola having an area of 1 bigha 6 kalhas to plaintiff 1 on 18-9-1952 for building purposes on a monthly rent of Rs. 150/- and delivered possession of the same to the lessee with power to realise rent which had accrued due from the defendants. After the said lease, plaintiff 1 sent his men for making some constructions on the vacant portions which had an area of about 1 bigha, but the defendants in collusion with one another interfered with his possession resulting in a proceeding under Section 144 of the Code of Criminal Procedure. The Sub-Divisional Magistrate came to the conclusion in his order dated 18-11-1952 that the defendants had no title, but may were in possession and on that ground he made the preliminary order absolute against the plaintiffs. The defendants alleged in that proceeding that they had taken permanent settlement of the entire land from Jogendra Chandra Mukherjee about 40 to 45 years ago and had. Subsequently constructed at their cost buildings on those lands on payment of annual rent of Rs. 564, Rs. 510 and Rs. 186 respectively to plaintiff 2. They claimed to be in possession as permanent tenants and denied to have been monthly tenants of these premises. They (defendant) further set up a case that plaintiff 2 had no right to execute the lease in favour of plaintiff 1 and the said deed was fraudulent and bogus. The plaintiffs alleged that they were entitled to eject the defendants as they had falsely set up a case of permanent tenancy in spite of the fact that they were at best licensees or tenants-at-will. They further averred that the defendants were only monthly tenants with regard to the premises, and the vacant lands were all along in possession of plaintiff 2 and her predecessors. According to them, the defendants forfeited their tenancy and they were liable to eviction. They sent a notice on 12-12-1952 to the defendants determining their tenancy, but the latter neither paid any heed to it nor they vacated the premises and the lands in question. In these circumstances, the plaintiffs instituted this suit in January 1953 for the reliefs already indicated. On 5-9-1955, plaintiffs, filed a petition for amendment of their plaint and they wanted to add in paragraph 9 of the plaint that the defendants had forfeited the tenancy "on account of denial of plaintiffs' title and non-payment of rent:"

(3.) Defendants 1 to 4 took several pleas, but it is not necessary to mention them as they have compromised this appeal with plaintiff 1. Their case was that they took settlement of 7 kathas of land for setting up an oil machine in tha year 1910 from Jogendra Chandra Mukherjee on a rent of Rs. 554. Defendant 5 filed a separate written statement and his case was that Achindra Chandra Mukherjee executed a will whereby he bequeathed his share in the entire estate, partly to plaintiff 2 and partly to Tamslika Banerjee and her sons. It was not correct to say that on the death of Achindra Chandra Mukherjee, plaintiff 2 alone succeeded to his estate. After the death of Achindra Chandra Mukherjee, there was a deed of family arrangement on 9-74951, but, according to it, the property in dispute was not allotted to the share of plaintiff 2 and, on the other hand, the said property was allotted to the share of Tamalika Banerjee and her sons. Plaintiff 2 had the right to enjoy its usufruct only during her lifetime by way of maintenance and she had no right either to alienate or encumber it. He alleged that the deed of lease in favour of plaintiff 1 was collusive, fraudulent and without consideration and the lessee did not acquire any title or interest in these holdings and, in fact, plaintiff 2 was not at all entitled to execute the said deed in respect of these holdings. His further case was that he took lease of land measuring 8 kathas from Jogendra Chandra Mukherjee near about the year 1911 on an annual rent of Rs. 510 and the lease was initially for fixing machines etc. Later on, his business developed and he made improvements and there was an oil crushing machine, gola and cemented space for drying caster seeds and other oil seeds in the said land. He claimed to be a permanent tenant in respect of that area and disputed the validity of the notice and the extent of the damages claimed by the plaintiffs. He filed a supplementary written statement on 15-9-1955 after the plaintiffs' amendment of the plaint and stated that he neither denied the title of plaintiff 2 nor refused to pay rent. In clear words, he admitted the relationship of landlord and tenant between plaintiff 2 and himself and expressed his willingness and readiness to pay rent. Defendants 6 and 7 filed another written statement on similar lines and they alleged to have taken settlement of 6 kathas 5 dhurs of land by way of permanent settlement from Jogendra Chandra Mukherjee in the year 1928 for starting a surkhi mill at an annual rent of Rs. 186. After the lease, they constructed a godown and put up an engine shed and a surkhi mill at their cost on the said land. They also filed a supplementary written statement, admitting the relationship of landlord and tenant between plaintiff 2 and themselves and stating that they were always ready to pay rant to plaintiff 2, but she had refused to accept it. The defendants claimed to be in adverse possession as well of these lends and their another objection was that the Civil Court had no jurisdiction to pass a decree for ejectment.