PURNA NAND PURI Vs. KAMALA SINHA

JUDGEMENT

(1.) This appeal under 01.10 of the Letters Patent of this Court is by defendant No. 1 in a suit for declaration of title and recovery of possession together with mesne profits in respect of 1 Bigha 4 Kathas 13 dhurs or land appertaining to Khata No. 205 in village Sonepur Adam (Tauzi No. 5545).

(2.) In the revisional suvvery record of rights, which was finally published In December 1020, the suit land was recorded in the name of Ram Pabitar Gir, who was admittedly the Kothari (servant) of defendant No. 1. On the 27th May 1948, defendant No. 1 executed a deed of perpetual lease in respect of the suit land in favour of Kamla Singh, the plaintiff, who, in his turn executed a Kabuliyat agreeing to hold the land as a lessee on an annual rental of Rs. 19/13/9 inclusive of cess The premium agreed upon between the parties was Rs. 7,350/-, which, under the terms of the lease, was payable in three instalments as follows: (i) Rs. 100/ by way of advance at the time when the negotiation was finalised, (ii) Rs. 6,000/- at the time of the registration of the document, and (iii) the balance of Rs. 1,250/- at the time of exchange of equivalents.

(3.) The suit was instituted by the plaintiff with the allegation that the lessor (defendant No. 1) had not only failed to put him in possession of the lease-hold interest in accordance with the terms of the document but had also put an obstacle in his way by setting up Sheo Mahton (defendant No. 2) as a false claimant of raiyati or under-raiyati interest in the suit land. It was alleged that after the registration of the document, when the plaintiff proceeded to take possession of the suit land, he noticed that the eastern ridge of plot No. 340, which was one of the settled plots, had been demolished and it was amalgamated with the adjoining plpt No. 341, which was not included in the plaintiff's lease. In this state of affairs, the plaintiff withheld payment of that portion of the premium which under the terms of the lease was payable to defendant No. 1 at the time of exchange of equivalents. The plaintiff, however, insisted on his right to be put in possession of the suit land over which he was entitled to be in possession with effect from the date of execution of the lease. The plaintiff was also willing and ready to pay the balance of Rs. 1,250/-to defendant No. 1, and even tendered the same to him. But defendant No. 1, who was in collusion with defendant No. 2, failed to put the plaintiff in possession of the land, and on the contrary, he himself continued in wrongful possession thereof and appropriated its profits, compelling the plaintiff to seek his remedy in Court As already indicated, besides seeking declaration of title, the plaintiff has also asked for recover) of possession and mesne profits from the date of the execution of the lease up to the date of delivery of possession.