- (1.) THIS is a defendants appeal against the decree and judgment dated 5-12-1963 of the Civil Judge, Mainpuri in civil appeal No. 98 of 1960 confirming the decree and judgment dated 25-1-1960 of the Munsif Shikohabad in original suit No. 119 of 1958 by which the plaintiff's suit for possession of the property in suit was decreed.
(2.) THE plaintiff brought the suit on the allegations that the land in dispute belonged to Sri Ram Chandra Maharaj Birajman Mandir Ram Chandraji and Harbilas was its sarbarakar. The property was given to Chiranjilal defendant No. 2 (respondent) in 1951 by means of a lease deed dated 1-91951. He was allowed to make additions and alterations but he was not allowed to sub-let or transfer the property. He could, however, remove the material at the time of vacating the possession. Initially the lease was for one year only. It was alleged that Chiranjilal defendant No. 2 vacated the property and put defendant No. 1 in possession by executing a sale deed in his favour in January, 1956 which was against the conditions of the lease. Defendant No. 1 was in unlawful possession since then. He did not vacate the premises though he was asked to do so, hence the suit. Defendant No. 2 (respondent) did not contest the suit. Only defendant No. 1 (appellant) contested the suit on the ground that his predecessor-in interest, i. e., defendant No. 2 was the owner of the property in suit and as a result of transfer, defendant No. 1 became the owner. It was claimed that there were no constructions on the land when it was taken by defendant No. 2, who made constructions. It was further claimed that defendant No. 1 also made construction to the knowledge of Harbilas and as such he was estopped. It was also contended that defendant No. 2 had not vacated the premises in terms of the conditions of the lease deed and defendant No. 1 had succeeded to all the rights of ownership of defendant No. 2. There were some other pleadings also.
(3.) THE trial court framed issues on the pleadings of the parties and arrived at the conclusion that the plaintiff was the owner of the property and that Harbilas was the sarbarakar. It further held that defendant No. 2 was a lessee and not a licencee and that the suit was not barred by estoppel and acquiescence. It also held that the suit was maintainable even without getting the sale deed cancelled. It also observed that the plea of S. 41 Transfer of Property Act was also taken half-heartedly but it was not proved that defendant No. 1 was a bona fide purchaser. The following two points only were argued, before the lower appellate court. "1. On the allegations in the plaint, defendant No. 2 was a lessee. He sold the property treating it as his own, as such he incurred forfeiture. When forfeiture came about, the plaintiff ought to have given a notice under S. 111 (g) of the Transfer of Property Act and in absence of such a notice, the suit for possession is not maintainable. 2. The learned Munsif ought not to have granted decree for possession along with the materials when the constructions were made by defendant No. 2 who sold his property to the defendant-appellant." The lower appellate court held that under the circumstances of this case notice under S. 111 (g) Transfer of Property Act was not necessary as the suit was brought against the person by the owner who was not the lessee and that person also did not claim to be holding under the lessee of the plaintiff. But he set up a case that he himself was the owner and his predecessor-in-interest too was the owner and not the lessee of the plaintiff. On the second point it held that the learned Munsif was perfectly justified in not allowing the defendant-appellant to remove the material before his ejectment. With these findings, the lower appellate court dismissed the appeal. Feeling aggrieved, defendant No. 1 has filed this appeal.;