S.C.Tripathi, D.S.M.Tripathi, B.D.Agarwal, J. - (1.) THIS is plaintiff's appeal.
(2.) THE property in dispute comprised of certain shops described by letters A, B, C, D and E in the sketch map appended to the plaint and situate in khetasarai, district Jaunpur. THE relief sought in the suit is the eviction of the defendants nos. 4 to 8 from these shops besides arrears of rent and perpetual injunction against the defendants 1 to 3. On May 10, 1966 counsel for the parties in the lower appellate court stated vide paper no, 205-A that the dispute is confined to the shops aforementioned. The plaintiff based his claim to the shops in dispute upon title. In paragraphs 1 to 8 of the plaint he has traced the title asserted to these shops. It has been averred that the shops were raised by his father. In paragraph 6 the contention is that there was a gift made orally by the father in favour of the plaintiff. The defendants nos. 4 to 8 have been described as tenants over these shops. The contention further is that the defendants 4 to 8 were in collusion with the defendants 1 to 3 who were interested to deny the plaintiff's title. The tenancy was determined by the plaintiff by notice under section 106 of the Transfer of Property Act given under registered cover on August 21, 1962. Initially the court fee paid by the plaintiff was on one year's rent besides upon the sum of Rs. 245/- claimed as arrears of rent. Later, however, in terms of the order of the court below dated September 27, 1965 the plaintiff added the relief of perpetual injunction against the defendants 1 to 3 and valued the property at Rs. 2500/- described as the market value thereof. The additional court fee of Rs. 500/- was also paid thereon. The suit, therefore, did not remain confined on the basis of the alleged tenancy of the defendants 4 to 8 alone. On May 13, 1966 learned Munsif, Shahganj, District Jaunpur decreed the suit for perpetual injunction against the defendants 1 to 3 and also for eviction against the defendants 4 to 8. The claim for damages for use and occupation against the defendants Nos. 4 to 8 from September 22, 1962 was decreed as well. The relief sought for recovery of Rs. 245/-as arrears of rent was rejected. In the appeal filed against the decree by the defendants 1 to 8, it was held that the shops in question had been constructed by the plaintiff's father as claimed by him. It was not accepted, however, that there was oral gift by the plaintiff's father in his favour. The plaintiff was found to be a co-owner of these shops along with other co-sharers. For the defendants 4 to 8 the finding is that they were not shown to have been admitted as tenants by or on behalf of the plaintiff. The decree of the trial court was reversed taking the view that the suit could not be maintained because the plaintiff had failed to establish the relationship of landlord and tenant as against the said respondents Nos. 4 to 8. The appeal was accordingly allowed and the suit brought by the plaintiff dismissed on December 6, 1967.
(3.) SRI Sankatha Rai, learned counsel for the appellant urged that in view of the findings recorded by the courts below with respect to the title of the plaintiff to the disputed shops, the suit could not be dismissed despite the failure of the plaintiff appellant to establish that there was the relationship of landlord and tenant between him and the defendants 4 to 8. In so far as the question of title to the shop is concerned, this stands concluded on the findings upon fact and there is no perversity or other legal infirmity shown to exist about it. The lower appellate court found distinctly on considering the relevant evidence both oral and documentary that the shop in dispute had been constructed by the predecessor in merest of the plaintiff. The construction was made around the period of 1922-23. The contention for the defendants 1 to 3 to the effect that the shops were raised by their order in or about 1951 was not found made out. With respect to the site, the finding that the predecessors of the plaintiff were the licensees and the construction was raised with the permission of the prelecessors of the defendants 1 to 3 who were the Zamindars. In paragraph 24 of the written statement filed by him the defendant no. 2 set up the licence saying that the father of the plaintiff raised certain constructions on this land with their consent. The same thing is pleaded in paragraph 36 of the written statement filed by the defendants 1 and 3. In the witness box the defendant no. 2 was unable to make out that the shops in question were not raised by the predecessors in interest of the plaintiff or that this was not without the consent of the Zamindars. The licence, therefore, became irrevocable and in view of Sec. 9 of the Zamindari Abolition and Land Reforms Act the building and the site thereof are to be deemed settled with the plaintiff. In so far as the defendants 4 to 8 are concerned, the case of the plaintiff has been that they were admitted as tenants. The defendants 4 to 8 pleaded that they were taken in as tenants by or on behalf of the defendants 1 to 3. They have not set up a case of adverse possession in themselves. None of these defendants 4 to 8 has set up title to the shops in himself. Accepting as the lower appellate court found that these were not the tenants for or on behalf of the plaintiff, it does not follow that he was not entitled to evict them on the basis of title.;