KANHAIYA LAL Vs. ABDULLAH

JUDGEMENT

(1.) This is a Letters Patent appeal from a judgment of a learned Single Judge of this Court dismissing the suit of the plaintiffs which had been decreed by the two lower Courts. The plaintiffs as zamindars of certain land sued for the ejectment of the defendant whom they alleged to be a tenant paying them ground rent for the site of the house of which the defendant was in occupation. This was not a case in which the plaintiffs alleged that a transfer had been made to the defendant by some other tenant. The plaint set out in para. 1 that "according to the custom prevailing in this purwa and the neighbouring purwas, the defendant like other tenants occupies the site as a tenant, on condition that whenever the proprietor of the land shall stand in need of getting the land vacated he will get the same done by paying the price of the building materials or by getting the same removed. The pleading therefore is that there is a special custom in this purwa, which is within the suburbs of Meerut City, and that that custom entitled the owners of the soil to eject any occupiers of houses at will. The peculiarities of the custom set up are that either the owner of the land shall pay the price of the materials or merely remove the materials. Learned Counsel argues that what his clients intended to say was that the defendant might remove the materials. In any case it is obvious that the custom alleged is a very arbitrary one and would require very good evidence for its proof. The defendant denied that there was any right of ejectment with the plaintiffs and he also alleged that he and his ancestors had been inpossession of the site for about 100 years and in occupation of the house and the site and that the building was a pucca building worth about Rs. 1,500. No issue was framed by the trial Court on the alleged custom. Issue No. 2 was: "On what terms did the defendant occupy land? Is he liable to ejectment? If so, on what conditions?" The trial Court states: Plaintiff has stated on oath that the terms of tenancy were that defendant will be liable to ejectment at will by removal of materials. That fact is corroborated by the decree of the Court in respect of the land of Hamid's house. So the terms of tenancy are reasonably clear.

(2.) Now this statement causes us a great deal of difficulty. In the first place the record has been examined and the evidence of the two plaintiffs does not contain any such statement. Moreover the finding of the trial Court is that the rights of the plaintiffs arose by a partition dated 20 October 1917, and that the defendant has shown that he has been in possession of the house for about 25 years past. In particular the trial Court mentions that the house of defendant is shown as a boundary in a sale-deed dated 4 October 1907, which was ten years before the plaintiffs acquired their rights. The plaintiffs therefore are not the persons who put the defendant in possession of the site for building purposes. The defendant stated on oath that the house had been in occupation of his father and grand-father. The documentary evidence and the sale-deed of 1907 corroborated him as regards that year. We are of opinion that the trial Court was not fair to defendant in holding "All that he has been able to show is that he has been in possession for 25 years past." The plaintiffs themselves had admitted in evidence that they did not know when defendant and his ancestors came into possession. Under these circumstances the Court below should have stated that the defendant had been in possession for at least 25 years and not that he had not been able to show that he had been in possession beyond that period. Now in the absence of any evidence of custom, and in the absence of any evidence of contract, it is not clear how the Court below came to pass a decree that the plaintiffs had a right to eject the defendant from possession of his house.

(3.) The presumption of law is that where a permanent building has been erected by defendant on land which has been given to him for purposes of erecting a building, he has a right to remain in possession of the building as long as the building stands. It is not for the defendant to prove specifically what were the terms on which his ancestors were allowed to erect the building. We may also note that the law of registration was not in force at the remote time which the defendant indicates and therefore there is no question of the necessity of a registered deed. Even under the present law there would be no necessity for a registered deed for land which is obviously less than Rs. 100 in value because the monthly rent is stated to be only four annas. When the defendant made an appeal the lower appellate Court framed a point No. 2: Does the relation of landlord and tenant exist between the parties? If so, on what conditions is the defendant liable to be ejected?