SITA RAM TEKRIWAL Vs. RAJ KUMAR & OTHERS

JUDGEMENT

(1.) Present second appeal has been preferred against the judgment dated 18.9.2002 passed by Additional District Judge Court, No.-2, Gorakhpur passed in Civil Appeal No. 79 of 1994, Vishwanath Prasad & others Vs. Sita Ram Tekriwal, by which judgment dated 17.11.19823 passed by Civil Judge-I, Gorakhpur in O.S. No. 102 of 1980 Vishwanath Prasad and others Vs. Sita Ram was set aside and the first appeal was allowed for the relief claimed in the original suit.

(2.) In original Suit No. 102 of 1980 the plaint case in brief was that plaintiffs are onwers of land detailed at the foot of plaint measuring approximately 26000 square feet situated in mohalla Purdilpur, Gorakhpur. The defendant Sita Ram Tekriwal took the land in possession from the plaintiff on lease by registered lease-deed dated 23.2.1972 for a period of 23 years and took the possession of said land same day for running the cinema. The defendant agreed to pay from the date of lease-deed Rs. 931/- per month as monthly rent for this lease in first week of each calendar month regularly up to period of 15 years, and thereafter at the rate of Rs. 1131/- per month for the remaining lease period in the like manner. The defendant had also agreed to pay Rs. 8000/- as premium within 9 months from the date of execution of lease deed to the plaintiff. The defendant did not pay Rs. 8000/- the amount of premium within time specified in lease deed in spite of several demands. Subsequently on protest and demand from the side of plaintiff, the defendant gave a signed written undertaking dated 4.2.1975 by which he acknowledged the liability to pay premium of amount of Rs. 8000/- and assured the plaintiff for its payment at an early date. But he did not honoured his assurance and avoided the payment of premium amount, and on 27.1.1978 defendant only paid Rs. 500/- towards amount of premium for which he made the endorsement of part-payment on the back of writing given by him on 4.2.1975 in his handwriting and signature and again acknowledged the liability to pay remaining amount of Rs. 7500/- by the same endorsement. Since September, 1977 the defendant had not paid the monthly rent of Rs. 931/- per month in spite of demand and request of plaintiffs. Therefore under terms of lease deed, in case of non payment of rent continuously for 6 months, the plaintiffs are entitled to enter into possession of land in suit by terminating the lease of defendants by giving 30 days' notice. As the defendants had failed to pay monthly rent of disputed land for more than 6 months in continuation the plaintiff sent a registered post notice dated 25.3.1980 to defendant through counsel for terminating the lease and for the demand of amount of rent due as well as the remaining amount of premium due alongwith interest. Said notice was served on defendant on 27.3.1980 but inspite of its service, the defendant had neither paid the amount of rent and premium due nor had handed over the vacant possession of the land in suit. Therefore, the plaintiff had filed suit for recovery of possession over land in suit detailed in plaint by ejecting the defendant and recovery of Rs. 45,716/- as the amount due as above and also for recovery of damages at the rate of Rs. 931/- per month pendelte lite and till recovery of actual possession of disputed property.

(3.) In original suit, defendant had filed written-statement in which he had admitted that he had taken possession of disputed land from plaintiffs after execution of registered lease-deed dated 23.2.1972 and had agreed to pay monthly rent for 15 years at the rate of Rs. 931/- per month and thereafter monthly rent at the rate of Rs. 1151/ per month and had also admitted to pay premium amount of Rs. 8000/- against which he had paid Rs. 500/-. Except these admissions, the defendant (present appellant in second appeal) had denied other plaint averments. In his written-statement, the defendant had further pleaded that although lease deed was executed for plot no. 216 but the area mentioned it also included the area of plot no 215. The disputed plot no. 216 was Khudkasht land of plaintiffs no. 1 to 4 before the abolition of urban zamindari, but after its demarcation plaintiff had lost its rights of ownership. The demarcation of these lands became final under section 3 of this Act. When plaintiffs no. 1 to 4 needed the money then they had leased their aforesaid 26000 sq. feet land to defendant the limits of which is given in lease-deed by which disputed land was transferred to defendant and the defendant had undertaken to pay rent and premium as stated above, but in fact it is not amount of rent but is amount of premium. Therefore, defendant had automatically become Bhumidhar on said land. The lease deed executed by plaintiffs no. 1 to 4 was illegal and ineffective. The plaintiffs had already received Rs. 61,946/- from time to time from defendant who became owner of disputed land under section 164 of UPZA & LR Act, 1951. Plaintiff cannot terminate the lease in favour of defendant by notice of 30 days because cinema building is constructed over the said land. The acknowledgment dated 4.2.1975 executed by defendant was not possible, therefore the said acknowledgment cannot confer any right to plaintiff. Suit is liable to be dismissed.