BAPNA, J. - (1.) THIS is a second appeal by the plaintiff in a suit for ejectment.
(2.) THE appellant, who is the Municipal Council, Jaipur City, gave a plot of land 35' 9" x 12' situated in Mohalla Julahan, Chaukari Ghat, Jaipur, on lease to the respondent Karimullah by a deed executed by Karimullah on the 14th of February, 1944. For various reasons which need not be mentioned, the Municipal Council desired that the tenant be ejected, and gave a notice on the 7th of February, 1945 for termination of the tenancy on 14th March, 1945, and a suit was brought on 2nd of July, 1945, which has given rise to this appeal. The defendant raised various objections, and pleaded inter alia that he was a licensee and had made pucca construction with the permission of the Municipal Council, and was not liable to ejectment. The validity of the notice for determination of the tenancy was questioned, and the contract of lease itself was alleged to be not binding as it had not been executed in terms required by the Jaipur Municipalities Act, 1938, which was the Act in force on the date of the transaction. The trial court decreed the suit in favour of the Municipal Council for ejectment of the respondent, and also passed a decree for Rs. 2/14/6 on account of arrears of rent and damages for use and occupation till the date of the suit. The defendant filed an appeal, and the learned Senior Civil Judge was of opinion that the agreement of 14th February, 1944, had not been executed in accordance with the provisions of sec. 42 of the Jaipur Municipalities Act, 1938, and was only an incomplete agreement, which could not form the basis of the suit. He allowed the appeal, set aside the decree of the lower court, and dismissed the suit. Learned counsel for the appellant has contended that the view taken by the lower court is wrong. The contention is Sec. 42 of the Jaipur Municipalities Act, 1938, only provides for contracts to be made in specified forms in order that the said contracts may be binding on the Municipal Council. This section, however, does not prevent the Municipal Council from taking advantage of any contract entered into on behalf of the Municipal Council with any third party, in case the Municipal Council ratifies that contract. The contract in this case is the document dated, 14th February, 1944. This is not a lease executed by or on behalf of the Council to which the provisions of sec. 42 may become applicable, but is in the form of a Kabuliyal, which is the usual form in this part of the country to admit people to tenancy, and on the face of it, its an agreement by Karimullah to take the land on lease on certain conditions. This agreement become a contract, when he got possession of the land in fulfilment of the agreement. The relevant portion of the document is as follows: - "i Karimullah, having taken on lease a plot of land 35 feet 9 inches by 12 feet at the rate of Rs. 3/8/- per annum, hereby make this agreement in writing that I will vacate the land in case the Municipal Council wants it to be vacated, and I shall do so one month's notice, and I shall not claim any compensation, nor object on the ground of long possession over the land, and I will not make any pucca construction, and will pay the rent every six months in advance, and I will not sublet this land anybody else, and if I desire to vacate it, I will do so on giving one month's notice in this behalf. " I The document is clearly an agreement to take the land on lease, and as it has been acted upon, and the Municipal Council accepts the transaction and wants to enforce the agreement, against the third party, the provisions of sec. 42 do not stand in the way of the validity of such agreement. It was next argued by learned counsel for the respondent that the Municipal Council granted permission to Karimullah to make a pucca construction by the document, dated 3rd March, 1944, and therefore, the Municipal Council had no authority to eject him. The permission is Ex. A/8, and it is clearly mentioned that Karimullah will not be entitled to make any pucca construction or even to plaster with lime the construction which he may make with stone and mud. Such permission can also be given to a tenant for his convenience, and would not convert a transaction of lease to a transaction of licence. Learned counsel for the respondent did not contend against the validity of the notice for the obvious reason that the notice fulfilled all the conditions required by the Transfer of Property Act for determination of the tenancy. The view taken by the lower court is quite erroneous. The appeal is accepted, the judgment and decree of the lower court are set aside, and that of the trial court restored with costs through out. It may be mentioned that a minor point was raised by learned counsel for the respondent about the claim for compensation in respect of the construction made by him under permit Ex. A 8. But when the suit was decreed by the trial court in favour of the plaintiff, and the defendant filed an appeal, he did not pay any court-fee for the amount of his claim nor pressed the point in the lower court. The point cannot now be urged in this Court. .;