Shiba Prasad Singh vs Chamru Pasi

Dhavle, J.—This is an appeal by the plaintiff in a suit for ejectment. It was found from measurements made by a Pleader Commissioner appointed in the case that the area in dispute was 2 kathas 12 dhurs. This area has been admittedly built upon by the defendant-respondent. The appellant is the admitted landlord of the estate in which the area lies, and he sued for the defendant''s ejectment on the ground that the latter had no right to construct a house on the area. Plaintiff claimed in the alternative recovery of Section 110 per katha as selami together with rent at Rs. 6 a katha. The trial Court refused ejectment but gave the plaintiff a decree for rent at Rs. 6 per katha for 2 katohas 12 chataks. The plaintiff appealed to the District Judge who upheld the order of the trial Court.

It has been contended before me on behalf of the appellant that the lower Courts were in error in refusing ejectment. The lower Appellate Court seems to have taken it that the trial Court had found that the plaintiff had actually settled the land in question with the defendant by a verbal agreement in 1926 and that a mere verbal agreement was entered into between the parties (leading to his entry upon the land and construction of the house thereon) because the plaintiff had at that time no clear title and could not dispose of the land by ordinary straightforward means. I have been taken into the judgment of the trial Court, and it is clear that one looks in vain in that judgment for any findings on the lines indicated. The learned Munsif does set out the defendant''s story which includes an allegation that the defendant paid Rs. 154 to the plaintiff through his agent Beni Tewari; and then the only point that ha discusses in connexion with the defendant''s story is the payment of the selami. Upon this point the learned Munsif says:

I am not satisfied that the defendant has succeeded in proving beyond doubt that he paid Rs. 154 as a selami to Beni Tewari as alleged. Much less there is any proof of the fact that at the time of the alleged payment Beni Tewari was authorized to receive the money on behalf of the landlord.

This seems to make an end of the defendant''s story of an oral settlement, and the learned Munsif proceeds to consider whether the construction made by the defendant "was an act of trespass or was acquiesced in by the plaintiff and his men." Upon this question he comes to the conclusion that there was "implied consent" of the landlord to build on the area in question and that the defendant was accordingly the possessor of an implied tenancy. I take it that the resort to an implication itself implies the absence of anything like actual settlement. The learned District Judge, after endorsing what he erroneously took to be the findings of the Munsif as regards an oral settlement, holds that the plaintiff is nevertheless not entitled to ejectment on the principle that "a party cannot plead that his own action was illegal and claim advantage from that illegality," and that the plaintiff cannot make his irregularity in making an oral settlement "without complying with the provision of law requiring a registered instrument for such settlement" the basis of an action for ejectment.

But the treatment of the case on these lines is directly contrary to what was held by their Lordships of the Judicial Committee in AIR 1931 79 (Privy Council) . The property in question was worth more than Rs. 100, and valid settlement required a registered deed. The absence of a registered deed ,cannot be made good by the acquiescence of which the learned Munsif has spoken or by the estoppel that the learned District Judge seems to have had in mind.

Mr. A.C. Roy who appears for the defendant-respondent has endeavoured to support the decrees of the lower Courts by arguing that as the lower Courts have in fact found the defendant to be not trespasser but a tenant, the appellant is not entitled to ejectment without notice. Now, it is perfectly true that in AIR 1931 79 (Privy Council) which I have already referred to, a notice had been given to the defendant before the bringing of the action for ejectment. But that was a case where the defendant had been inducted by the plaintiff upon the land under an agreement for a lease, which agreement was not carried out. The findings of fact which I have already detailed in the present case provide no good foundation for the contention that the defendant was in fact a tenant of some sort. The oral settlement was not believed by the learned Munsif, and if it could at all be said to have been believed by the learned District Judge it is only on the erroneous finding that the learned Munsif had found it. In any case the oral settlement, it is clear on AIR 1931 79 (Privy Council) will not save the defendant at all.

The implied tenancy spoken of by the learned Munsif is no tenancy at all so as to entitle the defendant to notice. The learned District Judge at one place speaks of the plaintiff actually inducting the defendant on to the land by a contract; but this, in the light of the judgment of the trial Court, seems to be entirely unfounded. Mr. Roy''s plea of notice is therefore not tenable, and there is really no defence to this appeal. The appeal is allowed with costs of all Courts. As in AIR 1931 79 (Privy Council) the defendant-respondent will be at liberty to apply to the trial Court in three months for fixing a time within which he may remove the materials of the house that he has built upon the land in suit.