Sharma, J. - (1.) THE appellant Nanulal brought a suit against the respondents for damages amounting to Rs. 5'jo/-for wrongly demolishing his Kham Guari (compound with houses all around) and for possession of the land forming the site of the said Guari situated in village Mundro.
(2.) THE plaintiff's suit is that he is the son of one Mahadeo deceased who was the owner of the Guari in suit consisting of several Kacha houses and a Bara behind the Guari. He only paid Rs. 1/10/- per annum as Peshkash to the defendants. Four or five months prior to the institution of the suit the plaintiff with his mother shifted to the house of Ganga Sahai, another son of Mahadeo who had gone in adoption to some other family and the houses in suit were locked by him with his goods inside. About 4 days before the suit the defendants got the houses demolished, recovered the material and the goods inside the houses & started new constructions inspite of the plaintiff's protest. THE plaintiff therefore prayed for demolition of new constructions, possession of the site and Rs. 500/- as damages for the demolished houses. The Defendants 6 in number pleaded that the Guari in dispute belonged to themselves and it was with their permission that the plaintiff's father Mahadeo had occupied it. Seven years before the suit, however, Mahadeo left the houses and handed them back to the defendants. The houses fell down on account of rains and the defendants had not demolished any of them. They also admitted that Rs. 1/10/- per annum was paid as Peshkash to them by Mahadeo so long as he was in possession of the Guari. The learned Munsif Neem-ka-Thana who tried the case held that the land under the Guari belonged to the defendants, but the plaintiff's father and his ancestors were allowed to occupy it and they constructed Kham houses over it. These houses, however, fell down on account of rains and not because the defendants demolished them. He overruled the defendants' contention that there was any express surrender of possession by Mahadeo to the defendants but held that the circumstances of the case warranted that Mahadeo abandoned the houses. He consequently dismissed the suit. The plaintiff went in appeal and the learned Civil Judge Neem-ka-Thana dismissed the appeal holding that even the houses belonged to the defendants and Mahadeo and his ancestors were permitted by the defendants merely to occupy them and after they fell down the plaintiff had no right left in them or in their site. He held that there were certain circumstances in the case which showed that Mahadeo had surrendered the possession of the property in suit to the defendants. Against this appellate decree of the learned Civil Judge plaintiff has come in second appeal to this court. It was argued on behalf of the appellant that the learned Munsif had clearly found that only the site belonged to the defendants and that the constructions were put up by Mahadeo and his ancestors. There was not only reliable evidence produced by the plaintiff in this respect but the evidence of the defendants themselves proved it. The learned appellate court was therefore wrong in going against the finding of the learned Munsif. It was further argued that it was the party's case that Mahadeo and his ancestors paid only Rs. 1/10/- per annum as Peshkash to the defendants. It was therefore proved that the defendants were only nominal owners of the land and Mahadeo and thereafter the plaintiff was entitled to the possession of the site permanently even though the houses had fallen. It was further argued that according to the defendants themselves, Mahadeo was in possession of the Guari within 12 years before the suit. There was therefore no answer to the plaintiff's suit so far as it related to the recovery of possession and demolition of the new constructions. It was further argued that both the lower courts having rejected the defendant's plea about express surrender were not justified in making out a case of abandonment or implied surrender which was not pleaded. As regards damages no particular stress was laid by the learned counsel. The learned counsel for the respondents argued that the learned appellate court was right in holding that the land as well as the houses belonged to the defendants and that Mahadeo having vacated the houses and having ceased to pay Peshkash would be deemed to have abandoned the property in suit The suit was therefore rightly dismissed by both the courts. I have considered the arguments of the learned counsel for both the parties. So far as the question of damages is concerned I unhesitatingly uphold the finding of the lower courts. The evidence produced by the plaintiff regarding the demolition of the houses by the defendants has been dis-believ-ed by both the courts and it has been held that the houses fell down on account of the action of rain. I have no reason to go against this concurrent finding of fact. The learned counsel for the appellant himself did not put forward any serious argument against the finding of the lower court in this respect. I therefore confirm the decree so far as the damages are concerned. As regards the recovery of possession I may say at the outset that I do not agree with the finding of the learned appellate court that the Guari belonged to the defendants and that it was the Guari which was leased to the plaintiff's ancestors. The first court held that the Guari belonged to the plaintiff's ancestors. It has been clearly found by the learned Munsif on issue No. 4 that the plaintiff's father and his ancestors were allowed to occupy the land under the Guari and they then constructed Kham houses over it. Inspite of this finding the learned appellate Judge says that the Munsiff has given no finding about the ownership of the Guari. The learned Munsif's finding on this question is supported not only by the evidence of the plaintiff's witnesses, but the evidence of the defendant's witnesses as well as including Bhanwarsingh defendant himself. All these witnesses say that the Guari was of Mahadeo. It has been admitted by Bhanwar Singh that Mahadeo and his ancestors used to repair the Guari. In face of all this evidence and the finding of the learned Munsif, the learned appellate Judge was not justified in holding that the Guari belonged to the defendants and not to the plaintiff. I am entitled to go into this question of fact by the Civil Procedure Code of Jaipur which applies to this case and which authorises the court of second appeal to interfere with a finding of fact on which the two lower courts have expressed different opinions. I hold that it was not the Guari but the land on which the Guari was constructed by the plaintiff's ancestors which was given to them on Peshkash. According to the Law Lexicon of British India by P. Rama Nath Aiyer the word "peshkash" means a present or tax particularly to Government in consideration of an appointment or as an acknowledgement for any tenure, tribute, fine, quit rent, advance on the stipulated revenues. Again according to the same Lexicon the word "quit rent" means a certain small rent payable by the tenant in token or subjection, by which the tenant goes quiet and free. Again it goes on to say that "quit rent" means a small yearly payment made by owners of land to a mere or less nominal landlord. On the basis of these definitions it was argued by the learned counsel for the appellant that both the parties having admitted that Peshkash was paid in respect of the property in suit, the real ownership should be deemed in Mahadeo and thereafter in plaintiff and therefore the defendants had no right of re-entry even though the houses had fallen down. Their only right was to realize the Peshkash. I need not re-record any finding as to whether the real ownership of the land in suit vested in the plaintiff or not, because even if he were taken to be only a tenant, the defendants had no right to eject him except in accordance with law. Even if the plaintiff is not the owner, he should at least be taken to be a tenant. Even as a tenant he could not be ejected except in accordance with law. After Mahadeo's death whatever rights he possessed devolved upon his sons. The plaintiff could not therefore be ejected except in due course of law. If the defendants thought that Mahadeo was only a tenant an 1 that the tenancy was for a limited period which had elapsed or was conditional they should have brought a suit for ejectment against, the plaintiff. They could not take the law into their own hands and take the property into their possession against the will of the plaintiff. The case of express surrender did not find favour with the lower courts. The defendants did not lay any foundation for an abandonment or implied surrender in their written statement. Both the lower courts inferred abandonment or implied surrender from the fact that Mahadeo began to live in another house a little time before his death and did not care to reconstruct the houses shortly after they had fallen. Even in his own statement Bhanwar Singh defendant says that the defendants were not entitled to eject Mahadeo as long as he paid Peshkash. Thus the question of the existence of the houses on the land in dispute was not material. No contract has been proved that Mahadeo or his ancestors had stipulated that they would be liable to evic-tion in case they failed to pay Peshkash regularly. Mere non-payment of rent for a long period does not terminate a tenancy. Even where a lease is not for a fixed period, it doss not came to an end by the death of the tenant but devolves on his heirs. These two propositions have been laid down in A. I. R. 1928 Lahore page 937 (Ralia and others vs. Bodh Raj and others) and with this view I respectfully agree. Therefore neither the non-payment of Peshkash for a few years nor the death of Mahadeo could entitle the defendants to re-entry. Similarly not putting up new constructions in place of those fallen down in rains could not entitle them to it. The question of abandonment, as I have said above has not been raised in the written statement, but even if it were, no circumstances have been brought out from which it might be inferred that Mahadeo had abandoned the property in suit. Whether there is abandonment or not is a question of intention. The circumstances on which reliance has been placed on behalf of the respondents do not prove that Mahadeo intended to abandon the property. The contention that Mahadeo had expressly surrendered has not been accepted by the lower courts. The property was in possession of Mahadeo within 12 years before the suit. There was therefore no answer to the plaintiff's suit so far as the recovery of possession and demolition of new constructions made by the defendants are concerned. The mere fact that the plaintiff failed to prove exact date on which the defendants took possession of the property in suit or because the plaintiff's case so far as the demolition of the existing houses by the defendants was concerned could not be believed can not disentitle the plaintiff from recovering possession of the property in the circumstances of the case. The appeal is partly allowed and the decree of the lower courts is modified in that the suit so far as it relates to the recovery of possession and the demolition of the new constructions by the defendants is decreed. It is dismissed so far as it relates to damages. In view of their partial success and failure the parties shall bear their costs thought. . ;