NAND LAL SHARMA Vs. BAJRANG LAL AND OTHERS

JUDGEMENT

(1.) This appeal by Nand Lal Sharma defendant No. 1, is directed against the judgment and decree of the lower appellate Court, affirming those of the trial Court. In order to appreciate the points of law involved in this appeal, it will be necessary to state some material facts. Bajrang Lal, plaintiff respondent No. 1, had instituted a suit against the defendant -appellant and others for declaration of his title in a house constructed with bamboo splinters, photos and tin -sheets bearing Municipal Holding No. 271, Ward No. 6, constructed on plot No. 162, Khata No. 20, measuring 5 dhurs (equivalent to two decimals) of land, in Mohalla Gopalpur, within Motihari town, and for a further declaration that the defendants had got no right, title and interest in the suit property. The plaintiff also prayed for a declaration that the defendant No. 1 was the tenant of the plaintiff up to the 30th April, 1957 whereas defendants Nos. 2 and 3 were sub -lessees of defendant No. 1 and their possession over the suit land and the house standing thereon was illegal. He also prayed for a decree for recovery of possession over the suit premises, and that he might be put in possession over the suit premises through the process of the Court and for a decree for Rs. 400/ - being the house rent detailed at the foot of the plaint. He has also prayed for awarding damages from the date of institution of the suit till the recovery of possession by appointment of a pleader commissioner, besides the costs of the suit.

(2.) According to the plaintiff, he purchased 5 dhurs of land of plot No. 162 on the 6th of May 1937 from Jhapasi Mian along with other lands. The plaintiff paid the consideration money, and came in possession of the land detailed in schedule 1 of the plaint. He constructed a structure, made out of split bamboo and tin -sheds over the land so purchased, the house was recorded in the records of the Motihari Municipality bearing Holding No. 271, within Ward No. 6. The defendant No. 1 was a sweet -meat sellers. He came to the plaintiff and requested him to give Holding No. 271 to him on rent. The plaintiff accepted the request of defendant No. 1 and rented the house in the month of October, 1955 at the rate of Rs. 30/ - per month. In proof of it, the defendant No. 1 executed a Kirayanama dated the 1st of October, 1955 (Ext. 6) in favour of the plaintiff. The defendant No. 1 put his signature in his own pen and handed it over to the plaintiff. It was settled between the plaintiff and defendant No. 1 that the rent would be paid on the 5th of every following month, and in default, the plaintiff would be entitled to evict the defendant No. 1 without giving any notice and would take khas possession of the premises. Since then, the defendant No. 1 lived in the suit premises as a monthly tenancy. Thereafter, the defendant No. 1 began to make default in payment of monthly rent and had not paid a single farthing since the date of taking the house on rent. On demand being made by the plaintiff, the defendant No. 1 went on putting off the matter on one pretext or the other. The plaintiff, however, allowed the defendant No. 1 to live in the houses and allowed him to hold over as his tenant. The plaintiff himself subsequently was in need of the house for the purpose of opening a shop in it. Therefore, he sent a notice to defendant No. 1 on the 11th of April 1957 through his lawyer by a registered post and also demanded Rs. 570/ - being the rent up to the 30th April, 1957. The plaintiff requested the defendant No. 1 to vacate the house by the 30th of April 1957 and to put the plaintiff in possession of the same by the 1st of May 1957, but the defendant No. 1 sent a reply to the notice of the plaintiff through his lawyer that defendant No. 1 had purchased the suit land for Rs. 500/ - orally from the plaintiff in the year 1944, had constructed the house thereon, and was living therein. The defendant No. 1 denied that he was the tenant of the plaintiff, and set up his own title in the suit land, and refused to give up possession. That attitude of the defendant No. 1, necessitated the filing of the suit by the plaintiff with the prayers referred to above.

(3.) The suit was mainly resisted by defendant no. 1, although written statement was filed by all the defendants. Their defence, inter alia, was that the suit, as framed, was not maintainable and was liable to be dismissed, and that the claim of the plaintiff was barred by limitation. Their further defence was that there was no relationship of landlord and tenant between the plaintiff and de -defendant no. 1. According to the defendants, the plaintiff had not made any construction over the suit premises and the same was lying party (Sic). So there was a talk between the plaintiff and defendant no. 1 in the month of April, 1944 and Rs. 500/ - was settled as the price of the suit premises, which was paid by defendant no. 1 to the plaintiff. The plaintiff granted a receipt for Rs. 500/ - to defendant no. 1 and promised that within a month he could execute a sale deed. According to the defendant no. 1, at the time of the talk of sale between the plaintiff and the defendant no. 1, the sale deed of the plaintiff dated the 6th of May, 1937 was misplaced, and as defendant no. 1 was demanding that sale deed, the plaintiff asked for time for one month. The defendant no. 1 being a simple and poor man, relied upon the plaintiff but the sale deed was not executed in his favour. According to the defendant no. 1 he filled up the ditch and spent about Rs. 100/ - on it. There was some Gairmazrua land by the side of the suit land and defendant no. 1 took that Gairmazrua land in his possession and on about 7 dhurs of land, he constructed the house at his own cost. He had to spend Rs. 500/ - in purchasing materials of the house and made certain fittings in the house at his own costs. Subsequently he opened a sweet meat shop in that house. He had no other house in Motihari town. According to the defendant no. 1, the receipt of Rs. 500/ - which had been granted by the plaintiff to him was also lost and he was in possession over the land for the last 14 years continuously and so even if the plaintiff had any title in the suit land, that was extinguished by adverse possession. The house standing on the suit land belonged to defendant No. 1 and so he had got every right to sub -let it to defendants Nos. 2 and 3, who were the tenants of defendant No. 1. The plaintiff never demanded any rent from defendant No. 1, nor any rent was ever paid by him. He also alleged that the Kirayanama (Ext. 6) was forged and fraudulent and he had never executed any kirayanama in favour of the plaintiff.