INDER DEO RAI Vs. RAM CHARITTER RAI

JUDGEMENT

(1.) This appeal arises out of a suit for possession of 14 blswas 6 dhurs of land in the village of Hata in the Ghazipur District. The plaintiffs are the sons of one Pema. Pema and the answering defendants jointly took a perpetual lea se of three plots of sir land with at area of 2 bighas 16 biswas at a rent of Rs. 3 a year on payment of a nazrana of Rs. 740. Pema made a deed of gift of his interest in this lease to his sons the plaintiffs. On the basis of this lease the plaintiffs filed the present suit alleging that under a private partition Pema had been in possession of 14 biswas 7 dhurs of land and that the defendants had unlawfully dispossessed him. The defendants took a plea that Pema had not paid his share of the nazrana. This plea has been found to be untrue and no longer in issue. They also allege that Pema's rights under the lease were non-transferable. This plea has been discussed by both the Courts below and is challenged in the appeal to this Court The Munsif got rid of it by holding that to transfer, though in form a lease, was reality; an out and out sale. On this view the question did not arise. The District Judge held that the document was a lease and could not be treated as any thing else. He gave effect to the defendant's plea and dismissed the suit In the meantime, however, Pema had died and it was urged before the Judge that even if Pema's rights were non- transferable they were certainly heritable and the suit should be decreed on the basis of the title which the plaintiffs had obtained by inheritance. The pleas argued in appeal before this Court raise substantially two issues: 1. Was the gift by Pema to the plaintiff a valid gift?

(2.) If not, should the suit have beer decreed on the basis of their title obtained by inheritance? 2. On the first issue the plaintiffs case has been put in a number of alternative forms It is first suggested that the lease should be treated as an out and out sale as held by the learned Munsif, and stress is laid on the fact that very extensive rights are conferred by the lease, including the right to sink a well or to construct a house, and that no right of re- entry is reserved. I cannot hold that these are sufficient grounds as between parties to the document for holding that the lease is anything else than it purports to be. Having regard to the small area of land involved, the rent reserved is a substantial rent and in any controversy between the parties to the lease the rights of the present plaintiffs can only be their rights as lessees under the terms of the instrument. They could not possibly claim against their lessor nor can they claim against the defendants to be treated as absolute proprietors.

(3.) The second contention is that they should be treated as thekedars or lessees of a proprietary interest; and the third contention is the they should be treated as fixed-rate tenants whose interest is d transferable.