- (1.)This second appeal has arisen out of a suit filed by the appellants for possession of the site in dispute measuring 5 marlas on the basis of title. The defence set up was that the suit land had been given to the respondent as permanent licensee-cum-tenant for the services rendered by him to the appellants. Dubious term licensee-cum-tenant had to be used probably because the grant was stated to be gratuitous and nothing was to be paid in lieu thereof by the respondent to the appellants. The respondent also claimed that he had made construction on the site in dispute at an expense of Rs.1,500/-. The trial Court holding the defendant to be a tenant dismissed the suit. Its finding was affirmed on appeal by the learned Senior Sub Judge but still dissatisfied, the plaintiffs have come in this second appeal.
(2.)The lower appellate Court for holding the respondent to be a tenant relied on the entries in the Jamabandi for the year 1958-59 prepared by Consolidation Authorities. According to these entries the respondent is shown in possession as tenant-at-will without any payment. On the basis of such an entry no conclusion could be legally drawn that the respondent was in possession as tenant. That apart, the entry in the Jamabandi was made on the basis of the mutation attested by the Consolidation Authorities. D.W.1 Kanungo who was examined by the respondent deposed that none of the parties made any application for entering the mutation. The Consolidation Authorities were otherwise also not competent to enter any mutation regarding the tenancy rights. It is only under the provisions of section 26 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 that after the completion of the scheme, Consolidation Officer is empowered to transfer the rights of a tenant under an existing lease to the new holding. It has been admitted by D.W.1 that the respondent was not entered as a tenant in any revenue record prior to the consolidation operations. The Consolidation Authorities for the first time could not recognise any one as a tenant unless the fact was admitted by the landowner. Although in the mutation order one Balbir Singh is stated to be present but nobody has tried to establish that it was one of appellants who was present. No question was put to Balbir Singh when he appeared in the witness-box that he was present and consented to the said mutation of tenancy. Even the entries in the Khatoni were highly suspicious because the same had been scored out and then re-written by the Patwari without any order from the competent authority. In these circumstances, the presumption available to the entries to the Jamabandi stood completely rebutted and the Courts below were not justified in relying on them. As the Courts below failed to take notice of the said infirmities and the law regarding the powers of the Consolidation Authorities, their finding would be liable to challenge in second appeal and is hereby reversed.
(3.)As regards the claim of improvements, the learned Appellate Court has not recorded any finding as to what was the amount actually spent by the defendant. But even if some amount was spent on the construction of a small room, the respondent being a trespasser would not be entitled to compensation on that count. However, the learned counsel for the respondent contended that as the plaintiffs failed to take any step to prevent the respondent from raising the construction they would be estopped by their conduct from seeking his ejectment without compensating him in regard to the said construction. I regret my inability to subscribe to this view. No equity arise in favour of a trespasser by raising some construction on the land taken possession of forcibly by him. If he does so he does it at his own peril.