- (1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is di rected against the judgment and decree, dated 25. 1 1. 1980, passed by 1st Addi tional District Judge, Nainital, in civil appeal No. 77 of 1980, whereby said appellate court, has dismissed the ap peal and affirmed the judgment and decree dated 05. 05. 1980, passed by the then Munsif, Kashipur, dismissing the original suit No. 220 of 1978, between the parties.
(2.) HEARD learned counsel for the parties and perused the record. Brief facts of the case are that original suit No. 220 of 1978, was filed by Ram Kali (original plaintiff), seeking injunction against Nagar Palika, Ramnagar, alleging that she was in pos session of the land in suit and has raised certain constructions. It is pleaded by the original plaintiff that she cannot be dispossessed from the land without adopting due process of law. Plaintiffs case is that the disputed land is a Nazul land within the municipal lim its of Ramnagar and the plaintiff was lessee over the land in suit. It is also alleged in the plaint that for the year 1978-79, she paid Rs. 180/- as rent to Nagar Palika, apart from the house tax paid by her. After death of original plaintiff (Ram Kali), Smt. Ram Murti Devi (daughter of brother of the hus band of original plaintiff-Ram Kali), got herself impleaded as legal heir, seeking the title in the property in suit on the basis of a will Defendant/respondent Nagar Palika, contested the suit and filed its written statement. It is pleaded in the written statement that no title or inter est gets transferred to Smt. Ram Murti, as alleged by her. It is admitted in the written statement that Ram Kali was in possession of the land in suit but her status was that of a licensee. She had no right to raise construction over the land in suit and that too without the per mission/getting the map sanctioned from the Municipal Board.
(3.) ON the basis of the pleadings, the trial court framed following issues in the suit : 1. Whether the plaintiff is the ten ant of the disputed property or a mere licensee? 2. Whether Smt. Ram Kali had ex ecuted any 'will' in respect of the disputed property in favour of Ram Murti? If so, had she any right to execute the same? 3. Whether the suit is undervalued and court fee paid is insufficient? 4. To what relief if any, the plain tiff is entitled? After recording the evidence and hearing the parties, the trial court found that the original plaintiff- Ram Murti was the licensee of the land in suit and she was not a lessee. It is further found by the trial court that the original plaintiff Ram Kali had no right to transfer the property to Ram Murti by executing a 'will' in respect of the property in suit, (Issue No. 3 was decided in negative, as a preliminary issue ). The trial court dis missed the original suit No. 220 of 1978. vide judgment and decree dated 05. 05. 1980. Aggrieved by said judgment and decree, Smt. Ram Murti (substituted plaintiff), preferred civil appeal No. 77 of 1980, before the lower appellate court. After hearing the parties, the lower appellate court, dismissed the appeal and upheld the judgment and decree passed by the trial court. Hence this appeal is filed before the Allahabad High Court on 15. 12. 1980. (This appeal is received by transfer to this Court un der Section 35 of U. P. Reorganisation Act, 2000, for its disposal ). Allahabad High Court admitted this second appeal on 16. 12. 1980, on following substantial question of law : Whether the position of Ram Kali was that of a tenant or a licensee? and even on the finding that the position of Ram Kali was that of li censee, whether the license was her itable and did not terminate on the death of Ram Kali?;