WAHIDULLAH Vs. ABDUL MAJID KHAN

JUDGEMENT

(1.) This is a plaintiff's appeal and arises out of a suit for ejectment of the defendant-respondent from a shop and for arrears of rent. The defence to the suit was that, the defendant-respondent was holding under a kirayanama executed by him with the plaintiff's consent, in March 1923, in favour of the plaintiff and was not liable to ejectment till the expiry of the period mentioned in the kirayanama. This plea of the defendant-respondent, and the other pleas taken by him, were overruled by the trial Court and the suit was decreed.

(2.) On appeal by the defendant-respondent the lower appellate Court has modified the decree of the trial Court, by dismissing the plaintiff's claim for ejectment of the defendant-respondent. The lower appellate Court has held that the kirayanama relied upon by the defendant-respondent, was executed by him in the plaintiff's favour, with the latter's consent, and was accepted by the plaintiff and as such the defendant-respondent was not liable to ejectment till the expiry of the term fixed by the kirayanama. It is common ground that no lease was executed by the plaintiff in favour of the defendant. The mere execution of the kirayanama by the defendant-respondent could not entitle the defendant- respondent to continue in possession of the shop: vide Kedar Nath V/s. Shankar Lal A.I. Rule 1924 All. 514. In this view of the matter the defendant was liable to ejectment from the shop in dispute and the trial Court was right in decreeing the plaintiff's suit.

(3.) The only question that has caused some difficulty has been the question of costs. The findings of the lower appellate Court leave no room for doubt that, notwithstanding the acceptance of the kirayanama, the plaintiff with dishonest motives brought the present suit, and if that finding was not based on a grave misapprehension as to the actual date of the execution of the kirayanama by the defendant-respondent, I would not have been inclined to award costs to the plaintiffs respondent. But it appears to me that the finding of the lower appellate Court proceeds on the assumption that the kirayanama relied upon by the defendant-respondent was executed by him on the 3 March 1923. A perusal of the kirayanama, and of the evidence of the scribe, shows that the kirayanama was executed not on the 3 March but on the 9 March 1923. I am not sure that, if the lower appellate Court had been alive to this fact, its finding would not have been the other way.