KRISHNA PRASAD SINGH Vs. ADYANATH GHATAK

JUDGEMENT

(1.) This is an appeal by the plaintiff against a decree dismissing his suit for declaration of title and recovery of possession over plot No. 2192 in mauza Jharia together with the building standing thereon. Defendant 1 who is the Jharia Raj doctor and the tenant of the house, has contested the appeal. Defendant 2, who does not appear, is the Raja of Jharia, and. the appellant is his uncle. The allegations in the plaint and written statement so far as now material are briefly as follows: In 1847, the plaintiff's father was given a khorposh grant of the land in suit with other lands by the then Raja. The plaintiff succeeded his father in 1916, and the present defendant 2 succeeded to the Raj. In 1919-20, the plaintiff enclosed the suit land with a compound wall, and built and furnished a house thereon called after himself Krishna Kunja. In 1925 in the finally published record of rights the plaintiff's name was recorded as khorposhdar. The same year the Raja brought a suit to eject the plaintiff from all lands recorded in his name. On 14 September 1926, this suit was decreed ex parte the appellant's case being that he did not contest the suit as he and the Raja had settled their disputes and the Raja promised not to execute the decree. The appellant, however, filed an application for re-hearing, and when that was dismissed filed an appeal against the order, which was also dismissed. In October 1926, after the suit had been decreed against him, but while the subsequent proceedings were pending, the appellant let out the house on a monthly tenancy on a rental of Rs. 30, per month to defendant 1. On 27 February 1928, at the instance of a receiver, who had shortly before been placed in charge of the Raj, possession was delivered in execution: of the decree. The writ of delivery of possession g was under Order 21, Rule 35, Civil P.C. and it was so executed by the peon, except with regard to the present suit land and house. Finding the house locked up, the peon with regard to plot 2192 gave only symbolical possession in accordance with the provisions of Order 21, Rule 36. Defendant 1, however, continued to pay rent to the appellant, or to a creditor of his on his behalf, up to December 1987. On 28 December 1937, however, defendant 1 took a permanent lease from defendant 2 at a rental of Rs. 51 per annum and without salami. Thereupon he declined to pay rent to the appellant's creditor, and repudiated the tenancy, This operating as a forfeiture, the appellant brought the present suit for ejectment.

(2.) The Raja filed a written statement supporting the plaintiff's case upon almost all points, and stating that he had executed the lease of 1937 under the undue influence of his doctor. He did not, however, appear at the hearing. Defendant 1 contested the suit, denied the plaintiff's title, and asserted that he was bound by the decree of 1927. The house, he said, had actually been built by the Raja and not by the plaintiff. He (defendant l) as a result of the decree and delivery of possession was compelled to, attorn to the Raja. He was allowed to remain on in possession of the house by the Raja as his licensee, and he only continued to pay rent to the plaintiff to avoid incurring his displeasure, as he was a powerful and influential man in Jharia. In 1937 the Raja was about to sue him for ejectment, and defendant 1 was therefore compelled to take a lease from him. He asserted further that after taking settlement from the Raja he had spent over Rs. 2000 in making new structures on the land.

(3.) The learned Subordinate Judge held upon the evidence that the house had been constructed by the plaintiff, but the plaintiff was bound by the decree and had no title as khorposhdar. Nor had he title by adverse possession, since he could not tack his possession before the decree to his possession after it, and in any case the delivery of possession operated as a break in plaintiff's adverse possession. Defendant 1 had been evicted by title paramount, and was consequently not estopped from denying the plaintiff's title. His lease from the Raja was valid and binding, and the plaintiff being a trespasser was not even entitled to compensation or to remove the materials under Section 51, T.P. Act. He accordingly dismissed the suit with costs. The appellant no longer presses his case that the decree of 1926 was collusive and not binding upon him, but he presses his claim to title by adverse possession. He asserts further that there has been no eviction by title paramount and defendant 1 is estopped from challenging his lessor's title. He is, therefore, in any view entitled to a decree for ejectment against defendant 1 even if he cannot get a declaration of his title as against defendant 2. Failing that, he is entitled to compensation for the value of the house, or at least, to take away its materials.