Kishori Lal vs Diwan Rajpal and Others

Dua, J.—This is a plaintiff''s appeal from the concurrent judgments and decrees of the two Courts below dismissing his suit for a permanent injunction against defendant No. 1 restraining him from setting up any erection over the plot of land in dispute situated in the municipal limits of Yamunanagar. and also praying that if any erections have since been made, they may be ordered to be demolished.

The plaintiff claims to have taken on lease from Sat Ram, defendant No. 3, land, measuring 3 biswas out of land measuring 4 bighas and 17 biswas bearing certain khasra numbers, which it is unnecessary, to numerate. This area, as already mentioned, is situated in Yamunanagar and the lease has been described to be for a period of 20 year. In the front portion of the land taken on lease by the plaintiff, he has erected shops and at the back there is a kotha towards the east: the remaining site lying vacant for the use of the plaintiff and his tenants. Defendant No. 1, according to the plaintiff''s averments, has forcibly started erection on the disputed piece of land and has put up defendant No. 2, Ram Lai, who sells tea at that place. Sat Ram, defendant No. 3, has admitted the plaintiff''s claim in his written statement, but defendant No. 1 has pleaded that Sat Ram had no right, title or interest in the khasra number in question and that the chabutra built by him (defendant No. 1), has been constructed on the suggestion and request of the public as a matter of charity. The construction, it is not disputed, is a chabutra built around a pipal tree. Defendant No. 2, it is averred, was in possession of his own stall of tea and defendant No. 1 had nothing to do with that stall. Defendant No. 2 has also denied Sat Ram''s right to lease out the khasra number in question, and indeed his case is that he had purchased a built stall in December, 1947 from one Nauta Ram who had set it up at that precise place earlier. Serveral issues were framed on the- pleadings of the parties, but I consider it unnecessary to reproduce them. Suffice it to say that the trial Court came to the conclusion that from the evidence on the record, it is proved- beyond doubt that the stall in question was in existence at the site long before the plaintiff took out the lease and that there is nothing definite as to which portion was leased out to the plaintiff, there being nothing on the record to show the location of the kotha said to have been built by Sat Ram not even a site plan showing the plot of land in dispute. Concluding, therefore, that Sat Ram had not been established to own and possess the site in question which is part of khasra No, 906/404, and though upholding the existence of a lease of three biswas of land out of the said khasra number, nevertheless, finding, that it was not proved that the site in dispute is part of those three biswas, the trial Court repelled the contention that the site in dispute was on lease with the plaintiff.

On appeal, the learned Senior Subordinate Judge affirmed the conclusions and the ultimate result arrived at by the trial Court. Defendant No. 3 was held by the lower Appellate Court also not to have been proved to be the owner of the plot in question. The stall was also held to have been in existence long before the lease in favour of the plaintiff and the appeal was accordingly dismissed.

On second appeal, the learned counsel for appellant has taken me through the conclusions of the two Courts below and has submitted that the lease in favour of the appellant was admitted by Sat Ram and this, according to the learned counsel, should be held sufficient to prove the lease. I regret my inability to uphold this contention. If Sat Ram himself is not shown to be the owner of the plot in question, any alleged lease by him in favour of the appellant would be futile and meaningless He can certainly confer no better title on the appellant.

The next contention on which the learned counsel has concentrated is that a lease is a transfer and, therefore, the lessee being a transferee, becomes a co-owner with the lessor, with the result that the appellant can claim co-ownership with defendant No. 3 on every inch of 4 bighas and 17 biswas in question. I am unable to sustain this contention. I am willing to concede that a lease is a transfer, but, broadly speaking, it is a transfer of a right to enjoy the property leased. The relation of lessor and lessee, though primarily one of contract, does bring about a transfer of an interest in the property leased, creating thereby a right which, by and large, is good against the whole world. The estate, which is transferred to the lessee, is usually described as the leasehold, the estate remaining in the lessor being described as the reversion. But from this, it does not follow that a tenant becomes a co-sharer with his landlord in the sense that he can claim equal rights with him as a joint owner or a co-proprietor. But this apart, in the case in hand, the principal difficulty in the appellant''s way is that even defendant No. 3 has not been found to be the owner of the site in dispute and on this ground alone, this appeal must be dismissed. On the view that I have taken, it is unnecessary to refer to Raman Pillai v. Ramakrishna Pillai AIR 1952 T.C. 195, and Ambika v. Rameshwar AIR 1946 Oudh 221, to which the appellant''s learned counsel made a reference during the course of arguments.

Incidentally, it may be pointed out that as observed by the two Courts below, the lease also does not with precision describe the property leased and there is no evidence to which my attention has been drawn showing that the appellant has as a tenant taken possession of the site in question in pursuance of the lease-deed. When the attention of the appellant''s learned counsel was drawn to these hurdles in his way, he, in a fair and frank manner, befitting the traditions of the Bar of this Court, stated that he could not take the matter further.

The result, therefore, is that this appeal fails and is dismissed, but the parties would bear their own costs in this Court.