Decided on January 18,1935



Tomlin, J. - (1.) THIS is an appeal from a decree of the Judicial Commissioner of Ajmer-Merwara in a suit in which the respondents, the railway company, sought to recover certain land and buildings thereon in the possession of the appellant. Before the Subordinate Judge the railway company obtained an order for possession on certain terms which involved the payment to the appellant of a sum of Rs. 2,446-8-0. On appeal, that order was reversed and the suit was dismissed by the District Judge. A further appeal was taken to the Judicial Commissioner when, in its turn, the judgment of the District Judge was reversed and an order for possession was made on terms which involved payment to the appellant of a sum of 5,000 rupees.
(2.) THE circumstances of the case are unusual and are shortly these. In 1891 the railway company, who occupy certain Government land for the purposes of their railways, formulated and put into operation a scheme for housing certain of their employees on part of such land. THE idea seems to have been to form a village community consisting of the workmen in the company's, employment on the land in question. THE land was to be leased at ground rents by the railway company to the workmen, who were to build their own houses with money lent them by the company and recoverable by monthly instalments with interest. THEre was to be a committee, with the carriage and wagon superintendent of the railway company as chairman, and through, that committee the affairs of the community were to be managed. It seems to have been part of the scheme, at any rate as it was put in practice, that, when a workman ceased to be employed by the railway company, by reason of death or otherwise, possession of his holding had to be given up, but he or his representatives received a payment in respect of the building which he had put upon it. In January of 1899 the appellant, who was in the employ of the railway company, but in a grade somewhat superior to those of the other occupants of these holdings, acquired certain plots and paid, in respect of the buildings which had been erected thereon by the previous occupiers, a sum of Rs. 1,363-11-0. He went into possession and remained in possession for a-number of years upon terms which are to be found in certain annual leases from the railway company executed by him, although in fact, they do not seem ever to have been executed by the railway company. It is not, however, disputed that he was in possession upon the terms of those documents. There are four of them in the record. They are each expressed to be a lease for a year. The earliest is dated January 1, 1902, and the others are dated January 1, 1906, January 1, 1907, and January 1, 1. 911, the lease of January 1, 1911, seems to have been the last. He undoubtedly remained in possessions after December 31, 1911, upon the same terms. He, in fact, remained in possession till 1923; but between' January 1, 1912, and 1923, certain events happened which led up to this action. Before these events are described attention should be called to such of the terms of the leases as seem to be material. The lease taken for reference is that of January 1, 1911. There seems to be no difference between the leases so far as the material parts are concerned. It is expressed to be between the superintendent of the carriage and wagon department of the railway company on behalf of the railway company of the one part and the appellant of the other part. Under Clause 1 the company agrees to let and the tenant agrees to take the land in question from January 1, 1911, at the monthly rent of twelve annas during the term. Under Clause 2, the tenant is prohibited from assigning, underletting, or parting with the lease without the written consent of the superintendent. In Clause 3, which is the critical clause, there is this provision : In case the said tenant shall die or leave the service of the said company from any cause whatever 'during the continuance of the term hereby granted the said term shall immediately cease and determine and the said 'company shall take and pay for to the said tenant his heirs executors or administrators the value of the said message or dwelling house and buildings on the said land at a price to be fixed by the said superintendent, whose decision as to the price or value of the same shall be final.
(3.) THE first observation to be made is that, assuming the term comes to an end by reason of the death or departure from the service of the company of the tenant, there seems to be, on the language of Clause 3, nothing to justify the retention of the land by the tenant after the expiration of the term, on the ground that he has not actually been paid the value of the messuage. THEre is no doubt an obligation on the railway company to pay the value, of the messuage in accordance with the terms of that clause, but it does not seem to be a condition of his giving up possession of the land that he should be first paid, It ought to be said that the payments which he made under his tenancy in regard to rent were always made in fact to the village committee, of which the superintendent was chairman, both before and after the expiration of the last of the leases.;

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