Thakurji Maharaj vs Anant Bharthi and Another

The facts of the case out of which this appeal arises are these. Bhirag Rai was a fixed-rate tenant holding Certain land in fixed-rate tenancy in the village of Dhoudhia. In 1915, he was old and blind, and his four Rons had died of plague. On the 18th of September of that year he executed a deed of endowment by which he transferred his fixed-rate holding and house to Sri Thakurji Maharaj under the management of one Markendeo Bharti. He continued, however, to reside in the house which was little more than a heap of ruins, but he never gave up the site and, dilapidated as the buildings were, he continued to be sheltered by them. He died towards the end of 1918. Markendao then took possession of that house and re-built it. The plaintiff- Zemindar objected and then sued alleging that on the tenant''s death the respondent had no right to build upon the land which belonged to the Zemindar. The Munsif dismissed the suit. The learned Subordinate Judge decreed it on appeal. The present second appeal is preferred by the endowment. Bhirag Rai had certainly the right to transfer his fixed-rate holding, and we consider that his transferee is in exactly the same position as he himself was before the transfer or as his heir would have been if Bhirag Rai had died without making a transfer. If Bhirag Rai had lived, clearly Bhirag Rai could not be ejected from his house be long as he remained an agricultural tenant in the village, and if he had died and the property had descended to his heir, his heir could not be ejected from that house. We do not see that the position of the transferee is, in any way, different. We have ascertained on remanded findings, that, with the exception of the house in suit, Markendeo Bharti has no other place in the village in which he tan reside, and in order to cultivate the fixed-rate holding, it is necessary for him to have some residence and a place in which to keep his cattle. It is true that Markendeo Bharti has improved the house by re building it, but Markendeo Bharti has done no more than Bhirag Rai would have been entitled to do in his lifetime.

For the above reasons, we are of opinion that the learned Munsif was correct in the view he took. We set aside the decree of the learned Subordinate Judge and restore the decree of the learned Munsif. The suit will, therefore, stand dismissed. The plaintiffs will bear their own costs and those of the defendants in all Courts.