- (1.) G. S. N. Tripathi, J. This is a defendant's appeal arising out of the judg ment and decree dated 17-2-84 passed by the then 1st Addl. District Judge, Allahabad in Civil Appeal No. 170/79 - Smt. Habibun Nisha and others v. Har Prasad Dubey, whereby the learned 1st Addl. District Judge dismissed the ap peal with costs. That appeal arose out of suit No. 275/71, in which the judg ment and decree was delivered by Munsif West, Allahabad on 19-2-79. The suit of the plaintiff had been decree in toto. The defendant felt aggrieved, filed the said appeal, which met this fate as noted above.
(2.) THE plaintiff Har Prasad Dubey filed suit No. 275/71 in the Court of Munsif West, Allahabad for a decree of ejectment of the defendants from the portion of plot No. 126/188, Mutthi Ganj, Allahabad measuring with a frontage 43. 8 inches towards Tilak Road, bounded with North portion of plot No. 188, Mutthi Ganj, Allahabad South plot of Sri Radhey Shyam, East por tion of plot No. 188, Mutthi Ganj, Allahabad and West Tilak 'road. He also claimed Rs. 215. 96 on account of rent, damages, cost of notice etc. Pendente lite and future damages @ Rs. 70 was also claimed. The plaintiff has alleged that he is the owner and landlord of l/3rd portion of plot No. 126/188, Mutthi Ganj, Allahabad with a frontage measur ing 56 feet on the west/facing Tilak Road and 30 ft. 4 inches towards East, 124 ft. towards south and 132 ft. towards north. The aforesaid strip of open land was originally let out to the defendant in the year 1931 by the plaintiff's father Sri A. P. Dubey under a registered lease-deed dated 23-4-31 for a fixed period of one year, which was renewed from time to time and the last deed dated 13-5-32 was executed by the defendant for the abovementioned portion of the open plot for a period' of eleven years, which ended on 31-1-62. After the expiry of the fixed period of the above lease, the defendant became tenant at Will of the plaintiff from month to month on a monthly rent of Rs. 70. The tenancy of the defendant was according to English calender month. The defendant on 1-2-69 out of his own free Will and accord, surrendered a por tion of the aforesaid open plot measuring 38 ft. 4 inches x 29 ft. 7 inches on the back side along with a passage of 12 ft. long of his tenament and delivered possession of the same loathe plaintiff and the defendant continued to as a tenancy of the plaintiff on rent of Rs. 70 per month in the remaining portion of the said l/3rd portion of the open land. Since the land which was let out to the defendant was an open piece of land, the provisions of U. P. Rent Control Act was not applicable. Despite this fact the defendant had sur rendered a portion of his tenament, he maliciously filed a suit No. 850/69 in the Court of Munsif, West, Allahabad against the plaintiff and his son Virendra Kumar for injunction on false and baseless allegations regarding the Portion of the plot already surrendered by him in favour of the plaintiff on 1-2-69, wherein defendant had renounced his character as a tenant of the aforesaid land and forfeited all rights to remain a tanant in respect of that land. On 13-1-71, the plaintiff sent a combined registered notice under Sec tions 106 and 11 (g) of the T. P. Act to the defendant, whereby the defendant's tenancy was terminated after the expiry of 30 days from the date of receipt of the notice and he requested the defendant to hand over vacant possession of the above plot and also remove temporary construction, which the defendant had raised. That notice was served upon the defendant on 18-1-71. But he did not reply to it nor he vacated the premises. Therefore, the necessity of the suit arose and the same was filed on 23-4-71. The defendant Khalil Ahmad filed his written statement dated 12-12-75 (15ka ). He has alleged that the plaintiff has no right to maintain the suit as the defendant is not a tenant at Will. The defendant obtained a licence for raising constructions and carrying on business on the land in suit, including the land stated in paragraph 4 of the plaint over which the plaintiff has if-legally and wrongfully taken possession. The defendant constructed a room, varandati and store room towards the south-west, which is in use and occupa tion of the defendant as office and business centre. Besides these construc tions, the defendant constructed 4 kotharies for the use of his servants and labourer. In December, 1969, the plaintiff forcibly and wrongfully manipulated to take possession of the land stated in para 4 of the plaint and demolished the aforesaid 4 kotharies of the defendant. It is wrong to say that defendant voluntarily surrendered and gave possession of that portion to the plaintiff. The defendant raised construction over the land in suit by virtue of licence given by the plaintiff. The constructions are of permanent character and the licence is irrevocable and the defendant is not liable to ejectment. The defen dant is not a tenant at will and is not liable to ejectment.
(3.) UPON the pleadings of the parties, the learned Munsif framed the fol lowing issues: , (1) Whether the suit of the plaintiff is not maintainable as alleged in written statement? (2) Whether the suit has not been properly valued and court-fee paid is insufficient? (3) Whether the court has no jurisdiction to try the suit? (4) Whether the land or construction was let out either way its effect? (5) Whether the plaintiff ever permitted the defendant to raise construction? (6) Whether the suit is defective on account of partial ejectment as alleged in the written statement ? (7) Whether the notice is defective and illegal. If so, its effect? (8) Whether the suit is barred by principle of estoppel? (9) Relief? The learned Munsif found issues No. 1, 2, 5, 6, 7 and 8 in negative. Issues No. 3, 4 and 9 were found in affirmative. The suit of the plaintiff was decreed in toto.;