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ALLAHABAD HIGH COURT
DANIELS, J.
Moti Lal - Appellant
Versus
Yar Muhammed - Respondent
Decided On : 06-08-1924
JUDGMENT
Daniels, J. - This is an application in revision against a decree of the Small Cause Court, Cawnpore, dismissing a suit for rent of a shop. It appears that the ownership of the shop is in dispute between the plaintiff Moti Lal and one Kanhaiya Lal. The plaintiff gave a lease to the defendant, who entered into occupation of the shop. Shortly afterwards the defendant was ejected by Kanhaiya Lal. The learned Judge of the Small Cause Court has dismissed the suit holding (1) that the prima facie title to the shop is in Kanhaiya Lal, and (2) that the plaintiff failed to secure to the defendant possession over the property. By the second finding the learned Judge evidently means to find that there has been a breach of the covenant implied by Section 108(a)(c) of the Transfer of Property Act, for he finds earlier in the judgment that the defendant was ejected after entering inte occupation of the property.
2. As to the first of these findings, the applicant rightly objects that u/s 116 of the Evidence Act it was not open to the defendant to deny the plaintiff's title. It is not clear, however, that the second finding is wrong. If the plaintiff knowing that he had no title, gave the defendant a lease, but in consequence of his want of title either failed to secure possession to the defendant in the first instance, or, as in this case, failed to secure him undisturbed possession, he has, according to the view of at least two High Courts, failed to carry out the obligation imposed by Section 108, Transfer of Property Act : vide Tayawa v. Gurshidappa (1901) 25 Bom. 269 and Naorang Singh v. A.J. Meik AIR 1923 Cal. 41. The order complained of does complete justice between the parties and on full consideration I am not disposed to interfere with it. I therefore dismiss the application but without costs as the respondent is not represented.
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