FATELAL SHAH Vs. DAYALAL BISHRAMBHAI

JUDGEMENT

(1.) THIS is an appeal by the plaintiff from the appellate decision of Mr. J.R. Mudholkar, District Judge, Wardha, who on 28th February 1942, upset the judgment of Mr. V.B. Sarvate, Subordinate Judge, First Class, Chanda, in a suit in which the plaintiff had successfully sued to eject the defendants.

(2.) THE suit had been originally filed by Shrimati Rajmata Rani Prankunwar Bai Saheba, who had also filed this appeal. She died during the pendency of this appeal and her heirs were substituted as her legal representatives as appellants 1(a) and 1(b). The deceased plaintiff was the malguzar of mauza Sulejhari, Tahsil Brahmapuri, and she had leased out the plaint mentioned five fields, constituting one occupancy holding, to the defendants as tenants. She filed this suit for ejectment on the ground that the defendants had diverted the holding to non-agricultural purposes by constructing therein a residential house, two servants' quarters, three temporary structures, a motor shed and a temple. The defendants having failed to remove the structures and refused to vacate in spite of notices by the plaintiff, the latter filed this suit for ejectment in the Court of the Subordinate Judge, First Class, Chanda, on

(3.) IT appears that the main contest was put up in the Court of first instance by defendant 2 Bhimji in his written statement dated 4th December 1939 and that defendant 1 Dayalal simply adopted the written statement of his brother, the only additional ground that he urged being that he was not aware of any notice having been served by the plaintiff on defendant 2. It was about 7 or 8 months later that defendant l put up a new defence that the occupancy holding in suit was acquired by him alone from the plaintiff in 1934 and that he alone was the tenant of the plaintiff. It was further contended by him that he was not bound by the notice served on defendant 2, that the said notices fell short of the requirements and the spirit of the provisions of the Central Provinces Tenancy Act and that in any case the deceased plaintiff had Waived her right of forfeiture of the tenancy. Both the brothers had contended that the cons-traction of the temple was in the nature of an agricultural improvement and was for the betterment of the crops and that it did' not constitute any diversion.