SHIBA PRASAD SINGH Vs. CHAMRU PASI

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for ejectment. It was found from measurements made by a Pleader Commissioner appointed in the case that the area in dispute was 2 kathas 12 dhurs. This area has been admittedly built upon by the defendant-respondent. The appellant is the admitted landlord of the estate in which the area lies, and he sued for the defendant's ejectment on the ground that the latter had no right to construct a house on the area. Plaintiff claimed in the alternative recovery of Sec. 110 per katha as selami together with rent at Rs. 6 a katha. The trial Court refused ejectment but gave the plaintiff a decree for rent at Rs. 6 per katha for 2 katohas 12 chataks. The plaintiff appealed to the District Judge who upheld the order of the trial Court.

(2.) It has been contended before me on behalf of the appellant that the lower Courts were in error in refusing ejectment. The lower Appellate Court seems to have taken it that the trial Court had found that the plaintiff had actually settled the land in question with the defendant by a verbal agreement in 1926 and that a mere verbal agreement was entered into between the parties (leading to his entry upon the land and construction of the house thereon) because the plaintiff had at that time no clear title and could not dispose of the land by ordinary straightforward means. I have been taken into the judgment of the trial Court, and it is clear that one looks in vain in that judgment for any findings on the lines indicated. The learned Munsif does set out the defendant's story which includes an allegation that the defendant paid Rs. 154 to the plaintiff through his agent Beni Tewari; and then the only point that ha discusses in connexion with the defendant's story is the payment of the selami. Upon this point the learned Munsif says: I am not satisfied that the defendant has succeeded in proving beyond doubt that he paid Rs. 154 as a selami to Beni Tewari as alleged. Much less there is any proof of the fact that at the time of the alleged payment Beni Tewari was authorized to receive the money on behalf of the landlord.

(3.) This seems to make an end of the defendant's story of an oral settlement, and the learned Munsif proceeds to consider whether the construction made by the defendant "was an act of trespass or was acquiesced in by the plaintiff and his men." Upon this question he comes to the conclusion that there was "implied consent" of the landlord to build on the area in question and that the defendant was accordingly the possessor of an implied tenancy. I take it that the resort to an implication itself implies the absence of anything like actual settlement. The learned District Judge, after endorsing what he erroneously took to be the findings of the Munsif as regards an oral settlement, holds that the plaintiff is nevertheless not entitled to ejectment on the principle that "a party cannot plead that his own action was illegal and claim advantage from that illegality," and that the plaintiff cannot make his irregularity in making an oral settlement "without complying with the provision of law requiring a registered instrument for such settlement" the basis of an action for ejectment.