- (1.) The plaintiff is the appellant in this appeal, by special leave, which is directed against the judgment and decree of the High Court of Allahabad. The plaintiff's suit was dismissed by the Civil Court of Sitapur and the High Court confirmed that order of dismissal.
(2.) The facts necessary for the disposal of the appeal, in view of the only point raised before us lie in a very narrow compass. The dispute relates to the claim of the appellant to an area of 16 Bighas or 3 acres odd in plot 160 bearing Municipal number 1444, situated in Chhauni Qadim, Sitapur Cantonment. The plaintiff is the Taluqdar of the Mahmudabad estate in the district of Sitapur. The dispute relates to the nature of his title to the interest in his property which is admittedly nazul land and the particular whether he has forfeited his leasehold interest by reason of his acts and conduct to which we shall refer presently.
(3.) From the evidence on record the precise date upon which the predecessors in title of the appellant ancestors obtained this property on lease or the terms upon which they held it are not very clear. We should also add that this has not been the subject of examination by the High Court. There was, however, evidence that there was a bungalow constructed by a previous tenant on this property. This bungalow was burnt down by an accidental fire some years before these proceedings began and on the finding of the Courts, the site was vacant and without any building at the commencement of these proceedings. While so, the appellant appears in or about September 1947 to have sub-divided the plot, leasing them out to different persons for enabling them to erect building on them. The municipal Board of Sitapur objected to this dealing with the property and contested his right to do so, and passed a resolution requesting the State Government to terminate his lease. The Government thereupon issued a notification, in December 1948, for the acquisition of an extent of 2,68 acres out of this plot under S. 9 of the Rehabilitation of Refugees Act (Act 26 of 2948) for the purpose of erecting buildings for housing refugees from Pakistan. Before the Land Acquisition Officer assessing the compensation the contention raised by Government was that the land was admittedly nazul land and that the plaintiff was merely a non-occupancy tenant and that therefore be was entitled only to one year's rent as compensation. In answer to this claim the plaintiff filed, on March 25, 1949 an application claiming that he and his ancestors had been owners of the land and had been exercising "permanent, heritable and transferable rights" in the land openly and to the knowledge of and with the consent of the Government. He, therefore, claimed that he was entitled by reason of such interest in the land to sum of Rs. 52,900 as compensation for its acquisition. He also stated in that application that as his title to the property had been disputed by the Municipal Board of Sitapur which asserted that he had no rights to transfer or lease the parcels of land as he had done in September, 1947 he was filing a suit in the Civil Court for a declaration of his title in respect of that land and he, therefore, prayed that till the decision of the Civil Court the determination of the amount of compensation due to him may be deferred. Alternatively he prayed that if his claim as to the amount of compensation was not accepted the matter may be referred for decision to the Court for adjudication. The Compensation Officer, however, rejected the claim of the appellant to the title that he claimed to the property and holding that he was mere non-occupancy tenant decided that he was not entitled to anything more than a year's sent and assessed the compensation payable at Rs. 15, This order was passed on March 26, 1949. Soon thereafter and after the expiry of the period of notice that he had given under S. 80 of the Civil Procedure Code the appellant filed a suit out of which this appeal arises, on July 11, 1949 impleading the Municipal Board, Sitapur which had disputed his right to parcel out the lands and lease them to refugees, and the State of United Provinces which disputed his claim in the compensation proceedings as defendants. After stating the earlier history of the property the plaint proceeded: ''The plaintiff and his ancestors have been owning the bungalow and other constructions and holding the premises with a permanent heritable and transferable rights. The plaintiff and his predecessors have been exercising heritable and transferable rights in the land in dispute openly and to the knowledge of the Government and Municipal Board and in any view of the case have acquired such rights by adverse possession." After reciting that the Municipal Board had been realising a consolidated amount of Rs. 388/8/- per year from the plaintiff and his ancestors in respect, of the lands of all their bungalows including the plot in dispute, it prayed for a declaration that he had a permanent heritable and transferable right as owner and, in any case, as a permanent lessee for building purposes and that he had right to lease out the same.;