MIRZA MOHAMMAD HASAN Vs. BUDDHU

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for ejectment and recovery of arrears of rent. The plaintiff came to Court on the allegation that he was the proprietor of a kothri No. 49 (old number) situate in ahata No. 3 (corresponding to old No. 2) in mohalla Badshahi Mandi, Allahabad; that the defendant's father Kanhai was given this kothri on lease dated 6 February 1890, which was executed by Kanhai in favour of Mirza Hasan Ali, the father of the plaintiff, on a rent of Re. 1 per annum; that it was one of the stipulations in the aforesaid lease that the lessee will be liable to ejectment on 15 days notice; that Kanhai remained in possession of this kothri as a lessee till his death and thereafter the defendant succeeded his father; that the defendant had withheld the payment of the annual rent since February 1927, and that he now denies the title of the plaintiff to the property in suit. Hence the suit for the ejectment of the defendant from the kothri described at the foot of the plaint and for recovery of Rs. 7 as arrears of rent. The defendant contested the suit and denied that the plaintiff or his predecessors in. interest were the owners of the property in suit. He claimed to be the full owner of the site and the kothri and denied his liability as lessee to the plaintiff. The learned trial Court decreed the suit in toto. On appeal the learned Civil Judge reversed the decree of the trial Court and dismissed the suit. The propriety and the legality of the judgment of the Civil Judge is assailed on a variety of grounds in this Court. Before dealing with those points, it will be convenient to give a short history of this kothri.

(2.) It appears that the kothri No. 49 and a number of other kothris are situate inside an ahata in the town of Allahabad. The entire ahata was owned prior to 1885 by a lady named Mt. Bibi Jan. This lady transferred certain properties, including the kothri in suit, in favour of Mir Najaf Ali under a deed of gift dated 13 December 1885. Mir Najaf Ali executed a sale deed on 14 November 1889 in respect of this kothri and some other properties in favour of Mirza Hasan Ali father of the plaintiff. On the death of Mirza Hasan Ali apparently there was a partition amongst his heirs and the property in suit was allotted to the share of the plaintiff. It has been strenuously argued by the learned Counsel for the appellant that the learned Civil Judge had erred in allowing the defendant to set up an entirely new case in the Court of Appeal without amending his written statement. As I have stated before, the case of the defendant in the written statement was that he was the full owner of the building and the site. He had nowhere pleaded that he was a licensee. The learned Judge however held that the defendant had been occupying the kothri as a licensee and he was not liable to ejectment as long as he continued to occupy it. In the earlier part of his judgment he says: The position therefore is that the site of the kothri belonged to the plaintiff's predecessor-in-interest while the kothri itself was built by the defendant and his father over 50 years ago on the same site granted to him for the purpose. The appellant therefore was a licensee of the land.

(3.) In my judgment, the learned Judge should not have allowed the defendant to change his case and claim to be the licensee, I cannot therefore accept the above quoted observation as a finding of fact on the issue involved in this case which precludes me from examining the case on the merits. The plaintiff relies on a kabuliyat dated 6 February 1890 executed by Kanhai, in which the following passages occur: I have been occupying the kothri from before on behalf of the vendor under a sarkhat of rent agreement and in lieu of forced labour etc. ...and do covenant that I shall continue to pay a sum of Re. 1 per annum as rent for kothri No. 49 occupied by me, situate in the enclosure aforesaid...whenever the proprietor of the house wants to enhance the rent or have the house vacated, he should inform me 15 days before, so that I might vacate the house during that period or continuo to occupy it under a fresh sarkhat on enhanced rent.