MATHURI Vs. BHOLA NATH

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for ejectment. Originally the plaintiffs brought a suit in the Court of Small Causes to recover Rs. 50 as house rent for three years against the defendant. In the written statement the defendant pleaded that the house did not belong to the plaintiffs at all but belonged to the defendant, and denied his alleged tenancy. The plaint was accordingly returned by the Court of Small Causes for presentation to the proper Court, and it was later filed in the Court of the Munsif. The defendant again took up the same position. The trial Court found that the plaintiffs case that the house belonged to them was not established and that the house appeared to have been built by the defendant's ancestors. It accordingly dismissed the claim. There was no other option, because the plaintiffs claim was based on the allegation that they were entitled to the house itself.

(2.) On appeal to the District Judge, the finding of the first Court that the house did not belong to the plaintiffs had to be affirmed, because there was no evidence to prove the plaintiffs case. The District Judge took the extraordinary step of taking down the statement of the defendant during the pendency of the appeal and subjected him to a cross-examination. In his statement the defendant admitted that his grand-uncle and grandfather must have settled down on the land with the permission of the then zamindar Gulab Gir, as they could not have settled down without his permission. He did not clearly admit that the land had been given to his ancestors by Gulab Gir, or any one else for building purposes. Indeed the statement was that he had from his childhood been living in the house. In answer to certain questions he further admitted that his mother and other females used to do some work when called by Gulab Gir. He however never admitted that the land was given to his ancestors on condition of rendering any service. The learned Judge thought that in view of the admissions made by the defendant, the plaintiffs should be allowed a further opportunity to amend their claim, and proceed with the suit on an entirely different basis. He accordingly allowed the appeal and remanded the case to the trial Court with directions to allow the plaintiffs to amend their plaint. The plaint was then amended and the suit was converted from one for recovery of rent of the house to one for recovery of possession of the site by demolition of the construction. The plaintiffs took up another position that originally the land had been given as a license but the defendant's ancestors had agreed to pay rent for it which he subsequently refused to do. In the written statement the defendant denied that there was any condition for rendition of services and claimed that he had put up a building of a permanent character, had incurred expenses and was not liable to be ejected.

(3.) The learned Munsif finding that there was no evidence whatsoever on the record to show what the terms of the original grant were, whether it was a license coupled with a condition or whether it was an unconditional license or whether it was a grant of any other nature, dismissed the claim. On appeal the same District Judge has allowed the appeal and granted the plaintiffs a decree for possession of the site on payment of compensation of Rs. 18. The learned Judge has thought that it is not necessary for him to decide whether the construction on the land is of a permanent character, because in his opinion Section 60, Basements Act, was not applicable as the house had been in the occupation of the defendant's ancestors from before the date when the Basements Act was enforced in these provinces (1891). Following the view of the Calcutta High Court, apparently that expressed in Surnomoyee Peshkar V/s. Chunder Kumar Das (1910) 8 I.C. 793 followed in Moti Lal V/s. Kalu Mondar A.I.R. 1914 Cal. 173, he has held that the plaintiffs are entitled to revoke the license on paying adequate compensation. As regards the amount of the compensation, he did not ask for the trial Court to determine the question but acted upon the suggestion of the defendant's counsel that amount should be fixed "in view of the valuation of the Municipal Board." The Municipal Board has assessed the house at an annual rental of Rs. 18. The learned Judge has fixed that amount as compensation. Obviously the compensation is inadequate as the annual letting value of the house cannot represent the value of the house itself.