Grover, J. - (1.) This is a plaintiffs appeal by special leave from the judgment and decree of the Patna High. Court in a suit instituted by the Koeri Hitkarini Punchit Hat Samiti for a declaration that it was the owner of the building of the Gola and the Sahan described in the plaint and that the defendants who were originally tenants at will of these properties had become trespassers and were liable to be ejected and for possession thereof.
(2.) The facts may be stated. In the year 1927, the Koeri community of "Pachhim Jewar" of Patna decided to construct a Hat (market) for which subscriptions were raised and lands were purchased. There was a meeting of the general body and the aims, objects, rules and Constitution of the Hat were settled. Although the Society was named as the Koeri Hitkarini Panchit Hat Society it was not registered until the year 1953 as a Society under the Societies Registration Act 1960. Out of the lands which were purchased for the Hat there were certain plots which were acquired from Nathu Mahto the father of Genda Mahto and Thakur Mahto defendants. The persons who carried on the work of the Society and in whose names the sale deeds of the lands were executed were Known as Panches, The father of the defendant Nathu Mahto was one of such Panches. Since the defendants wanted to start a vegetable business in the said Hat it was necessary to raise a structure. An agreement was entered into between the Samiti and the defendants the main terms of which were that the defendants were to construct a Gola at a cost of approximately Rs. 1500/-. They were to pay an annual rent of Rs. 100/- for the Gola and the amount of Rs. 1500/- was to be adjusted towards the rent. After full adjustment the Gola was to become the property of the Samiti. The real controversy which will be presently considered has centered on the status of the defendants, namely, whether they were defendants at will or permanent tenants.
(3.) It appears that it was decided that since the sale deeds by which the lands had been acquired for the Hat had been executed in the names of the Panches, the ownership of those lands in the name of the Samiti in the municipal registers be got mutated. For that purpose a petition was filed on May 19, 1928 before the Vice-Chairman of the Patna City Municipality (Exh. D-1). The was signed by the two defendants and four other Pacnesh. The following paragraphs of that petition may be reproduced: "(3) It has been decided unanimously by all the panches that the names of Gendi Mahto, Dargahi Mahto, Jitu Mahto, Pillu Mahto and Loknath Mahto which are mentioned in the register may be cancelled and in lieu thereof the name of Koeri Hitkarini Hat may be registered. (4) Gendi Mahto son of Nathu Mahto, resident of Musallahpur thana Pirbahore, one of the quarters of Patna town aforesaid has spent Rs. 1500/- (one thousand five hundred) from his own pocket in constructing a Gola towards east. Rs. 100/- will be paid annually as rent thereof and after Rs. 1500%--is paid, the gola will belong to the panches. (5) It was decided by the panchas in respect of the Gola , towards the east constructed by Gendi Mahto that Gendi Mahto and Thakur Mahto sons of Nathu Mahto and their heirs and representatives will remain in possession and occupation thereof generation after generation both in male and female lines on payment of Rs. 100/- (one hundred) annually and they will appropriate the income and the produce thereof generation after generation. At no time, the panches will have the right to enhance the rent." On June 3, 1945 the accounts were gone into between the defendants and the Samiti about the expenses which had been incurred on the construction of the Gola and the rent which was due to the Samiti It was found that after adjustment of the rent towards the cost of construction a sum of Rs. 139-11-0 was payable by the defendants till 1945 which amount was paid by them. On April 2, 1945 the defendants got a resolution passed to the effect that they were tenants at a fixed rent of Rs. 125 for the Gola and the Sahan. Later on a meeting of the general body was called on June 25, 1946 which was attended by 215 members including the defendants. It was resolved at that meeting that the earlier resolution of April 2, 1945 which was illegal should be cancelled. On September, 2, 1955 the plaintiff sent a letter to the defendants asking them to pay up the arrears and take a fresh settlement of the Gola but the defendants sent a reply taking up the position that they were permanent tenants. On November 16, 1955 the plaintiff called upon the tenants to with-draw their claim of permanent tenancy, pay the dues and give up possession of the Gola by November 20, 1955. The defendants sent a reply on. September 3, 1955 reiterating that they were permanent tenants and that there was no question of their giving up possession.;