TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THIS second appeal by the defendant and is directed against the judgment and decree of the first appellate court dated 25/31. 7. 1987 by which the first appellate court allowed the appeal of the plaintiff landlord and decreed the suit of the plaintiff for eviction of the appellant tenant. The facts of the case are that one Mahant Raghunandan Das gave big property to appellant Municipal Board on rent on 1. 1. 1956 for which a deed was executed between the said Mahant and the Municipal Board, Doongarpur on 14. 3. 1957. The property is 700 feet x 225 feet and was enclosed by boundary wall. The dispute is whether the property in question given by said Mahant Raghunandan Das to the appellant Municipal Board is given on perpetual lease or a lease for particular purpose with right to evict the tenant only on happening of events mentioned in the lease deed/patta. The deed dated 14. 3. 1957 has both the words patta as well as rent deed but it starts with following language:- The purpose for giving the property to the Municipal Board is given in the deed as under:- In the said deed, it is also provided that till the rent is paid by the Municipal Board to said Raghunandan Das, he shall not have any right to evict the Municipal Board from the said property. The conditions No. 3 and 4 are as under:- It is clear from the condition No. 3 of the said deed that the lease is heritable. However, by condition No. 4, it has been provided that in case, the land will become total treeless or will not be fit for using as garden, the patta will come to an end and the granter shall have the right to take possession of the said property from the Municipal Board. Along with the said condition, it is also mentioned in condition No. 4 that the Municipal Board or its successors shall not have any right to construct building over the said land and the Municipal Board and its successors shall not use the land for any other purpose except for the purpose of garden. In condition No. 8, it is provided that till the conditions of said deed are followed by Municipal Board, the granter shall not have the right to interfere in the possession of the Municipal Board and in the end, it is further reiterated that the deed is a patta for all times. However, against the words ``patta for all times'', in bracket, word ``lease deed'' is mentioned.
(3.) SAID Raghunandan Das died in the year 1976 which is after about 20 years from the handing over property to Municipal Board. Before death of said Raghunandan Das, he alleged to have executed a will in favour of his Chela Keshav Das, present plaintiff on 29. 1. 1973. Plaintiff Keshav Das filed the present suit for eviction of Municipal Board from the land in question in the year 1980 precisely on 18. 2. 1980. In para No. 5 of the plaint, it is mentioned that the rent since 1973 is due in the defendant but in para No. 14 of the plaint, the plaintiff claimed that the rent of 2 years i. e. 1978 and 1979 amounting to Rs. 102/- is only due in the defendant and, therefore, the plaintiff claimed decree of Rs. 102/-, arrears of rent. The plaintiff also claimed that the defendant materially altered the suit premises by raising three rooms which are constructed for establishing `octroi office' and the defendant also constructed one room and well in the property let out by the plaintiff's predecessor. Another ground is that by including some portion of the property in dispute, the defendant has allowed some cabin holders to do their business in the said cabins and the defendant started recovering rent from those cabin holders. Therefore, according to the plaintiff, the defendant sublet part of the suit property. It is also submitted that by that, the defendant has violated the terms and conditions of the lease deed and, therefore, the plaintiff is entitled to decree for possession of the suit property along with decree for arrears of rent. The defendant admitted the facts substantially. It is admitted that the suit property was taken on rent on 1. 1. 1956. There is no dispute about its measurement and there is no dispute about execution of the deed dated 14. 3. 1957. The defendant submitted that it offered the rent for the period from 1973 to 1977 but the plaintiff did not accept that rent. The defendant also submitted that it filed an application in the Court for depositing the rent. The defendant denied the will executed by said Raghunandan Das and also did not accept the plaintiff as successor of said Raghunandan Das for want of succession certificate. It was also submitted that the defendant not only offered rent to Raghunandan Das but after death of Raghunandan Das, rent was offered to the plaintiff also but he did not accept the rent. So far as allegation of raising construction is concerned, the defendant submitted that the property was given by said Raghunandan Das on perpetual lease with right to establish a public park and the defendant after accepting the property for establishing the public park invested lakhs of rupees in developing the garden. To fulfill the said object, the defendant also established a water pump, a chowkidar room, room for technical staff and for keeping the tools for gardening. The property is maintained by the Municipal Board as public garden and, therefore, the defendant has not violated the condition of the deed dated 14. 3. 1957 nor they have materially altered the premises. The defendant also admitted that they raised footpath near the suit property and constructed some wall only to protect the garden so that the cattle may not enter into the garden. The defendant also submitted that some persons were given permission to put their cabins but income from the said cabin is used for maintenance of the garden only and that was a necessity. The trial Court framed issues on 20. 7. 1981. The relevant issues for the purpose of deciding this appeal are the issues No. 3, 4 and 7. Issue No. 3 was framed on the basis of the plea taken by the plaintiff about construction of three rooms for octroi office, one more room and one well in the suit premises. ;