A qabuliat is not a lease unless it satisfies the requirements of Section 105 of the Transfer of Property Act, 1882, and the relationship of lessor and lessee is created only by a valid lease.

P. L. BHARGAVA, J.

( 1 ) THIS is a plaintiffs appeal It arises out of a suit for possession of land and recovery of arrears of rent for a period of six years. The facts are these : On 25-2-1891, a registered quabuliat was executed by the predecessor-in-interest of Phonda, defendant 1, in favour of the plaintiffs predeeessor-in-title and under this qabuliat payment of rent at Rs. 3/- per annum was agreed upon. Defendants 2 to 4 are the sub-tenants of the land on behalf of Phonda. Under the terms of the qabuliat Phonda was entitled to make khain constructions on the land and the value of the contructions was not to exceed Rs. 50/ -. It was also provided in the qabuliat that, if at any time the owner of the land desired to obtain back possession over the land, Phonda, would receive Rs. 50/- for the constructions made by him. Phonda took possession of the land and made certain constructions thereon. On 2-5-1945, Phonda executed a sale deed transferring the house, which he had constructed on the land, along with its site, to Ghasita, defendant 5. These facts have not been disputed before me.

( 2 ) AFTER the execution of the sale deed by Phonda in favour of Ghasita in 1945, the plaintiffs served a notice for ejectment upon the defendant, apparently on the ground that the execution of the sale deed by Phonda in favour of Ghasita amounted to assertion of his title and denial of their title, which had the effect of determination of the lease by forfeiture. Thereafter, the plaintiffs instituted the suit, which has given rise to this appeal. In the plaint also they alleged that the lease was determined by forfeiture; consequently, the defendants were liable to ejectment. In the alternative, it was alleged, in the plaint that the plaintiffs were also entitled to the relief claimed on the basis of their, title.

( 3 ) THE suit was contested by Ghasita, defendant 5, alone. The defence put forward by him was that he had purchased only the materials of the house standing on the land in dispute; that the transfer of the proprietary right in the land was never contemplated by the parties to the sale deed; that the lease was not determined by forfeiture; that he was entitled to the benefit of the provisions of Section 114, T. P. Act; that Phonda and after the transfer by him in his favour he was the permanent lessee of the land in dispute and as such he was not liable to ejectment; and that the notice issued by the plaintiffs was invalid.

( 4 ) THE suit was tried by the Munsif of Mathura, who found that there was no lease; but even if the qabuliat could be any evidence of a lease Phonda was not a permanent lessee of the land in dispute; that Phonda having transferred the land in suit along with the house the plaintiffs were entitled to determine the lease by forfeiture; that Section 114, T. P. Act has no application to the facts of the present case and that the notice issued by the plaintiffs was valid. In the result, the learned Munsif decreed the suit for ejectment and for recovery of Rs. 18/- as arrears of rent.

( 5 ) GHASITA, defendant 5, preferred an appeal against the decision of the trial Court and the learned civil Judge of Mathura, who heard the appeal, dismissed the suit for ejectment and maintained the decree for recovery of arrears of rent. The findings recorded by the learned Civil Judge were that there has been no suds denial of plaintiffs title on the part of Phonda or Ghasita, which might entitle the plaintiffs to determine the lease by forfeiture; that the qabuliat affords good evidence of the contract of tenancy, and it shows that there was a permanent lease; and that the notice issued by the plaintiffs was valid but ineffective, inasmuch as Phonda was a permanent lessee.

( 6 ) IN this appeal by the plaintiffs, the main point which has been raised on behalf of the appellants is that the plaintiffs case was based upon a qabuliat and not on any lease; that the position of Phonda and his transferee was that of a mere licensee and n

Click Here to Read the rest of this document