BIHARI MIAN Vs. SONA MARIK

JUDGEMENT

(1.) This is an appeal by the unsuccessful plaintiff claiming possession of a certain holding. It appears that the son of the landlord settled the property with the tenants, defendants 1 to 4, by an unregistered hukumnama of 1927 and thereafter rent was paid in October of 1928, although the hukumnama was not registered; in my opinion there was no necessity for so doing. But I do not decide the case on that ground.

(2.) The fact is that the defendants got into possession, paid rent, and whatever the circumstances of their entering into possession of the land are, there is no doubt that, by being in possession and the landlord accepting rent through his son, a contract of tenancy was constituted. Then came an unregistered patta of the plaintiff of the same land in August 1928 and a registered patta in January 1929; hence the dispute as to possession between the plaintiff and the defendants. Now there being an existing tenancy by reason of possession of defendants 1 to 4, the landlord had no right to execute any patta registered or unregistered in favour of the plaintiff; and in so far as the plaintiff paid salaami as consideration of his patta, it is quite clear the consideration wholly failed. No question of law arises in the appeal as the other point relating to the settlement of the defendants by the son of defendant 5 is disposed of on the finding of the Judge that he acted for his father. But even assuming that finding is not enough, the finding of the existence of the tenancy is sufficient. So far as the plaintiff's appeal against defendants 1 to 4 is concerned, it must fail. But it appears that the plaintiff asked in the Court below for the return of the salaami against the landlord who was also a party to the suit, and in the notice of appeal in this case which was served upon the landlord the plaintiff again made the same claim. There is no doubt whatever on the facts as found by the Judge in the Court below that the plaintiff-appellant is entitled to that sum of Rs. 100 which was the salaami paid by him. He is entitled therefore to a judgment and a decree against the landlord for Rs. 100 with costs.

(3.) But the appellant, as he fails against defendants 1 to 4 (the respondents), must pay the respondents costs. In the circumstances in my judgment the plaintiff was entitled to join both the landlord and defendants 1 to 4 and he might have, had the Judge in the Court below been so minded, recovered either possession of the land which he has failed to do, or the salaami with regard to which in this Court he has succeeded. The plaintiff is therefore entitled to add the costs which he has to pay to the defendants-respondents to the costs which he is entitled to recover against the landlord-respondent.