(FIRM) RAM SAHAI RAM RATAN Vs. IMAMI

JUDGEMENT

(1.) This is a second appeal by a plaintiff against, a decree of the appellate Court dismissing the suit of the plaintiff. The plaintiff brought a fuit setting out that the plaintiff was thekadar of an enclosure No. 66 known as Mandi Qaziganj together with a house in the enclosure, that Imam defendant was occupying a Kotihri in the said enclosure on a rent of Re. 1-4-0 per mensem, that there was a quarrel between the parties and on 5 June 1929. the plaintiff sent a notice by registered post, to defendant to vacate the Kothri by the end of June 1929 and to pay the rent which was due from March 1929, that, in reply to the notice defendant, wrote stating that he was not a tenant of the said Kothri but that he was a tenant of the land and the owner of the Kothri and that the rent was due year by year for the land. The plaintiff asked for possession of the Kothri and Rs. 5 arrears of rent and Rs. 5 damages. The written statement set out that plaintiff was not the owner of the house, that contesting defendant was the owner of the house, and that the predecessors of the plaintiff were the owners of the site only and plaintiff had only got a right to realise the rent of the site which the contesting defendant had never refused, that the house had been constructed by some predecessors-in-title of the defendant and that the proprietors of the Mandi had no concern with, the construction of the house and that the predecessors-in-title of the defendant had been for a long time in occupation of the house.

(2.) The first issue framed was whether the plaintiff was the owner of the Kothri in suit, and the second was whether the defendant was the tenant of the disputed Kothri. The Munsif held that the plaintiff was the owner of the land and that a sale by one Alopi to Bhawani, uncle of the present defendant, was a sale of the materials of the house, only and not of the house. The Munsif granted a decree to the plaintiff for possession of the Kothri allowing the defendant, to remove the materials. The defendant appealed and the lower appellate Court set out that the point for determination was whether the defendant purchased only building materials or also the right of residence, and whether the suit was barred by estoppel. The Court found that although the sale deed was missing the statement of the plaintiff's witness Nathu Teli proved that this witness admitted that formerly Alopi lived In that room and then Bhawani came some 30 or 35 years ago, and for the purpose of the present discussion the possession of Bhawani over the house is proved for over 30 years, that, the Munsif had decided that the payment of rent was ground rent and no objection had been taken to that finding, that under a deed of gift of 3 November 1890 by Bechu in favour of Bisheshar, predecessors of the defendant, there was a gift of the house and not of the land on which it stood, that the right to reside in the house was the subject of the gift so long as the donee paid the ground rent. Then follows a sentence to which objection has been taken: There is no doubt that there is no registered lease but the fact that the house has been allowed to stand on the land for such a long time shows the permanency of the tenancy, also the fact that so long the rent has not been, increased.

(3.) Learned Counsel has assumed in grounds Nos. 1 and 2 of the second appeal that this is a finding that there was a perpetual lease and objection is taken that a perpetual lease, was not pleaded or put in issue and should have been created by a registered instrument under the Transfer of Property Act of 1882 and the Registration Act. I do not consider that the finding is intended to be that there was a perpetual lease. The words used are "the permanency of the tenancy" as opposed to a tenancy for a short period of month to month or year to year. What the Court has found is contained in the last sentence of the judgment before the order which is: The plaintiff's case that he was the owner of the shop and land has been proved to be false and in my opinion he is only entitled to realize the ground rent so long as the house stands and the present defendant has a right of residence an it.