MADAN MOHAN DAS BABAJI Vs. SRINIVAS PRASAD PANDE

JUDGEMENT

(1.) These two appeals, which were originally heard by Manohar Lall J., and were referred to by him to a Division Bench, arise out of a suit for ejectment of the defendant from the disputed land and house and for recovery of rent for the three years preceding the institution of the suit. The facts found are that the plaintiff in the capacity of a chela and manager of a math took an advance of ns. 300 from the defendant on 7 may 1928 and granted him an unregistered permanent lease on n October, 1928, in respect of the disputed land and the house which was built thereon with the said money, the rent for the house being fixed at Rs. 9 a month. The plaintiff, however, repudiated this lease, and in 1936 he brought this suit for ejectment and claimed rent at Rs. 12 per month.

(2.) The defendant relied on the unregistered permanent lease and pleaded that the plaintiff was estopped from suing him for ejectment. He further pleaded that under the terms of the permanent lease he was liable to pay a monthly rent of Rs. 9 only. He also claimed a set-off for Rs. 106-12-10 on account of certain repairs said to have been effected by him on the disputed house. He raised various other contentions which are not relevant for the present purpose. The trial Court dismissed the claim for ejectment but decreed the claim for rent at the rate of Rs. 9 per month according to the terms of the unregistered permanent lease. No order was passed regarding the claim for set-off. Against this decision two appeals were preferred to the District Judge; one by the plaintiff and the other by the defendant. The plaintiff's appeal was dismissed, while the defendant's appeal was allowed and the District Judge set aside the decision of the trial Court and remanded the suit, so far as the claim for set-off was concerned. Hence these two appeals by the plaintiff. Appeal No. 104 of 1938 relates to the claim for ejectment and Appeal No. 31 of 1939 to the claim for set-off.

(3.) In Appeal No. 104 it has not been disputed that if the unregistered permanent lease is admissible under Section 53A, T.P. Act, the decision of the Court below is correct. But it is contended that Section 5SA is not retrospective in, its operation. This was the view taken by this Court in the earlier decisions in Jagdamba Prasad V/s. Anadi Nath Ray A.I.R. 1938 Pat. 337 and Baldeo Singh V/s. Mohammad Akhtar A.I.R. 1939 Pat. 488. But the point is covered by the subsequent Full Bench decision in Tika Sao V/s. Hari Lall A.I.R. 1940 Pat. 385. No doubt the question for determination by the Full Bench in that case was whether the new Section 92, T.P. Act, had retrospective operation; but Fazl Ali J. (as he then was) with whom Dhavle J. agreed (Manohar Lall J. dissenting) clearly pointed out that Secs.53A and 92, T.P. Act, stood on the same footing and both the Secs.had retrospective operation in view of the clear provisions of Section 68 of the Amending Act (20 of 1929). This Full Bench decision is binding on us and it must be held that Section 53A has retrospective operation. It is next contended by Mr. Ratho on behalf of the appellant that the lease in question was granted by the plaintiff as a chela of the then mahant of the math and now that the mahant is dead the lease is not binding on the plaintiff as its present mahant. But both the Courts below proceeded on the footing that the lease was given by the plaintiff as the manager of the math; so long as he is alive, it is not open to him to challenge the lease given by himself. Both the contentions fail, and Appeal No. 104 of 1938 must be dismissed with costs. As regards second Appeal No. 31 of 1939, it is not pressed and it is dismissed. There will be no order for costs in this appeal. Agarwala, J. I agree.