Saral Sonar vs Sudama Singh

Beevor, J.—The plaintiff-respondent brought a suit to eject the appellant from a certain house alleging that he had been a monthly tenant since 1937 but the tenancy had been determined by notice. The lower appellate Court found that the tenancy had not been proved but that the plaintiff had established his title and that the defendants came into possession with the plaintiff''s permission and he, therefore, gave a decree for recovery of possession.

It is urged that when the plaintiff''s case about the tenancy had failed the suit should have been dismissed. A number of cases were cited before me and somewhat different views seem to have been taken on similar questions in the High Courts in India in different cases but the only two cases where the facts seem to have raised the question in a form very similar to the one now before me are a Full Bench decision reported in Abdul Ghani v. Mt. Babni 25 All. 256 and a decision of a Judge of this Court reported in Mohamad Yusuf and Others Vs. Mohamad Waheed, . The Full Bench decision of the Allahabad High Court was almost exactly similar to the facts of the present case. The plaintiff came into Court alleging that the defendant had hired a house from him at a monthly rent and the plaintiff had given her notice to quit. The findings of the Court of first appeal after remand of issues by the High Court were that the plaintiff was the owner of the house, that the defendant occupied the house as a friend with the permission of the plaintiff and that the defendant had never before asserted her title to the house and that her possession was permissive.

It was held that the plaintiff was entitled, upon the facts found, to a decree for possession notwithstanding that his case had been that the defendant was his tenant.

In Mohamad Yusuf and Others Vs. Mohamad Waheed, again the plaintiff claimed to have been the landlord and to have served a notice on the defendants to quit. The defendants pleaded title by adverse possession. The plaintiff proved title and possession within 12 years but failed to prove that the defendants were tenants. It was held that on the facts found the plaintiff was entitled to eject the defendants. In Mohamad Yusuf and Others Vs. Mohamad Waheed, there was a finding that the plaintiff had been in possession within 12 years whereas in the present case, as in the case which came before the Full Bench in Abdul Ghani v. Mt. Babni (03) 25 All. 256 , it was found that the defendants'' possession was permissive. Either finding twill be sufficient to overrule a plea of limitation in a suit for declaration of title and recovery of possession and I, therefore, do not think that this difference in any way distinguishes the present case from the principle of the case decided in Mohamad Yusuf and Others Vs. Mohamad Waheed, .

For these reasons I hold that this appeal must fail and it is, therefore, dismissed but in view of the fact that the plaintiff-respondent did not put forward a correct case in the trial Court there will be no order for costs in this Court. Leave to appeal under the Letters Patent is refused.