K.N. Seth, J. - (1.) THE suit giving rise to the appeal was filed by the plaintiff-respondent praying for, (1) a declaration that they were tenants of the land in dispute and were entitled to retain and continue their possession over it as such, (2) actual and complete possession over the plot as well as of the shops constructed thereon and (3) re covery of Rs. 262.50 and future and pendente-lite damages for use, and occupation at the rate of Rs. 751- per month. The case set up by the plaintiffs was that the land in question was the property of the Muni cipal Board, Budaun, that the Board vide its resolution No. 17 dated February 26, 1961 agreed to let out the land to the plaintiffs at a rental of Rs. 120 per year; that the plaintiffs raised construction over the land after obtaining the sanction and approval of the Board; that the plaintiffs regularly paid rent to the Board which was accepted by it uptil the year 1967-68 that the plaintiff; their father and defendants No. 2 and 3 entered into a partnership about three years back but after the death of their father, the plaintiff terminated the partner- ship by a notice dated May 28, 1969 and asked defendants No. 2 and 3 to vacate the shops in suit which was in their possession on behalf of the plaintiffs as partners; that the defendants claimed themselves to be tenants on behalf of the Board that defendant No. 1 attempted to realise rent from defendants No. 2 and 3, that the Board had no right to create a tenancy in favour of defendants No. 2 and 3 during the subsistence and continuance of the tenancy of the plaintiffs that the Board illegally refused to accept rent remitted by the plaintiffs for the period 1968-69 that defendants No. 2 and 3 inspite of demand to that effect refused to vacate and deliver possession of the shops to the plaintiffs, hence the suit.
(2.) THE suit was contested by defendants No. 1 and 2 and it proceed ed ex parts against defendant No. 3. The Board admitted that vide its resolution dated February 26, 1961 it accorded its assent to the re quest of the plaintiffs and let out the land to the plaintiffs subject to the condition that the rights would be renewed each year and the cons tructions to be ereeuted on the land would be the property of the Board. The plaintiffs neither got the rights renewed nor completed any validly executed agreement and thus acquired no rights in the land in suit. It was asserted that defendant No. 2 was found in actual possession over the shops in suit and in order to regularise the matter a lease was got executed by defendant No, 2 whereby he became a tenant of the shops in dispute. It was also pleaded that the suit was barred by Section 326 of the U.P. Municipalities Act, Defendant No. 2 filed a separate written statement contending that he was a tenant of the shops on a rent of Rs. 201- per month. The trial court decreed the suit holding that the plaintiffs were the lessees of the land in suit and their rights had not come to an end. On the finding that the Board had no right to let out the land and the shops in question to defendant No. 3 he was entitled to remain in possession thereof. It was further held that the partnership did not create any tenancy rights in favour of defendants No. 2 and 3 and as the partnership had been dissolved the plaintiffs were entitled to exclusive possession over the land and the shops. The plea that the suit was barred by Section 326 of the U.P. Municipalities Act was negatived on the finding that a notice under the aforesaid provision had been served on the Board. The claim of the plaintiffs for dam ages was dismissed. The Board submitted to the decree. The learn ed District Judge dismissed the appeal of defendants No. 2 End 3 and the cross-objection filed by the plaintiffs with regard to the dismissal of their claim for damages and mesne profits. The defendants No. 2 and 3 have come up in appeal to this Court and the plaintiffs have filed a cross-examination.
(3.) SRI S.P. Gupta, learned counsel for the appellants, contended that no valid lease came into existence and the plaintiffs never acquir ed the status of tenants. On the premises that the plaintiffs were mere licensees, they were not entitled to claim possession over the land and the shops in dispute over which the appellants were in pos session under a valid lease from the Board.;