JUDGMENT Allah Raham, J.
1. This is an appeal against the judgment and decree dated 20.11.1978 passed by Civil Judge, Faizabadin Civil Appeal No. 220 of 1978 allowing the appeal of defendant respondent and setting aside the judgment and decree dated 24.11.1977 passed by Second Additional Munsif, Faizabad in regular suit No. 364 of 1971 and thus dismissing the suit of the plaintiff appellant.
2. It appears that the plaintiff Anwar Khan (now deceased and represented through 1/a Haseen Ahmad Khan and 1/b Parvez Anwar Khan) filed a suit (No. 364 of 1971) against the State of Uttar Pradesh for the relief of permanent prohibitory injunction restraining the defendant from interfering in plaintiff's possession over the house and Ahata whose boundaries are given at the foot of the plaint. He further sought injunction against the State and prayed that the State be restrained from auctioning the disputed property.
3. The plaintiff claimed that he is owner in possession of the house and Ahata which is Parcha Shuda land (Rent Free Lease) and part of Chak No. 1 of plot No. 247. The house and Ahata in dispute are part of Nazool plot No. 1052 which is included in Parcha Shuda plot No. 247. One Chhabiley Khan and Bismillah Khan, predecessors-in-interest of the plaintiff were the owners in possession of the said house and Ahata for the last 100 years. The house and Ahata was in dilapidated condition and the plaintiff started reconstructing the same but construction was stopped by the defendant. Now the plaintiff has come to know that defendant is intending to settle the disputed property with some other persons though they have no right to put the said property to auction, hence this suit.
4. Defendant contested the suit on the grounds inter alia that plaintiff has no concern with the disputed property nor is he in possession over the same. It has been also asserted that the plaintiff was never in possession over the disputed property. The defendant is the owner in possession over the disputed property. The defendant has been wrongly impleaded as a party to this suit. The suit is liable to be dismissed with costs.
5. In all five issues were framed in this suit by the learned trial court. The learned trial court perused the evidence--both oral and documentary adduced by the parties and recorded the findings on issues. He held that the plaintiff is in possession over the disputed house and Ahata. He also held that the suit is not bad for mis-joinder of the defendant. He, therefore, decreed plaintiffs suit and restrained the defendant from interfering in the plaintiffs possession over the disputed property or auctioning it to some other person.
6. Aggrieved against the said judgment and decree, the defendant preferred an appeal. The first appellate court disposed of the appeal on 20.11.1978 and held that the plaintiff has failed to prove his possession over the disputed property at the time of filing of the suit. Therefore, the learned first appellate court, held that the plaintiffs suit for injunction deserves to be dismissed. Consequently the appeal was allowed and the judgment and decree passed by the learned additional Munsif was set aside and the suit of the plaintiff was dismissed.
7. Aggrieved against the said judgment and decree, this second appeal has been preferred by the plaintiff appellant.
8. I have heard the learned Counsel for the parties and have carefully perused the record.
9. The only substantial question of law involved in this second appeal is whether the lease of a Parcha Shuda land shall stand determined in the event of the constructions standing on such land falling down and such land shall stand reverted to the owner. The first appellate court has held that once the constructions have become dilapidated and the same has not been reconstructed the lease shall stand determined and the Nazool land will revert to its owner. At the outset, it may be noted here that there is no pleading to this effect in the written statement of the defendant respondent. The relevant pleading in the written statement is that the defendant was always in possession over the land in question and the plaintiff was never in possession over the disputed land. Besides the statements of P.Ws. 1, 2 and 3, the documents filed by the plaintiff appellant go to prove that the plaintiffs were never dispossessed from the land in question. Paper No. 23 C/2 which is admitted to the defendant respondent shows that the plaintiffs were permitted to raise constructions over the disputed land within six months. This paper is dated 5.2.1968. Paper No. 25C/2 is extract of mutation register which shows that the plaintiffs name was mutated on disputed land (No. 1052). Paper No. 26C/2 is the permission to raise constructions issued by the Nagar Palika, Faizabad in favour of the plaintiff on 24.12.1969. This permission was valid from 24.12.1969 to 23.12.1970. The building map approved by Nagar Palika, Faizabad is paper No. 27C. Contrary to this, defendant has filed note paper No. 30C/1. The relevant note may be extracted as under:
Parcha Shuda plot No. 1052 and Chak No. I Hasnu Katra, Faizabad has become khandhar. The proceedings were initiated and the present Parchadar, Sri Anwar Khan applied for time which was allowed vide Deputy Collector's approval on 3.2.1968 but he did not effect constructions. Again he has applied for time. I have inspected the site. It is khandhar. I do not recommend his application.
If approved, his application may be rejected and the name of Parchadar against plot which reverted on...owing to being khandhar over three years, may be ordered to be expunged. The plot may also be ordered to be re-auctioned for premium for building lease after issuing the proper proclamation for wide publicity. Sd/- illegible.
10. This proposal was approved. Paper No. 30/7C/1 is the proclamation of auction sale dated 5.1.1970 which shows that the disputed plot was advertised for auction sale. The permission of Nagar Palika Faizabad was valid from 24.12.1969 to 23.12.1970 (paper No. 26C/2). Therefore, during validity of the building plan there was no justification for putting the disputed plot on auction sale. There is nothing on record to show that the lease of the plaintiff was ever determined. The defendant respondent have not been able to show any stipulation in the lease agreement which provided in the event of construction being dilapidated, the Nazool land shall revert back to the owner.
11. Similar question arose in Simper v. Coombs (1948) 1 All ER 306, A house which was let out on weekly tenancy was demolished by a flying bomb and the tenant went to live elsewhere. No notice to quit was served and no other steps were taken to determine the tenancy and the tenant paid no rent. The question was whether the tenancy of the tenant had been determined or he is still the tenant of the premises. Denning, J., held that the tenancy of the land was not determined by a notice to quit and the tenant was entitled to possession of the new house constructed by the landlord. For the sake of convenience, the following para of the judgment may be extracted here.
The result is that there has been nothing at common law to determine the tenancy. There has been no notice to quit. The destruction of the premises is not sufficient, and the Landlord and Tenant (War Damage) (Amendment) Act, 1941, does not determine the tenancy. The tenancy, therefore, remains in being. The fact that a house has been erected on the site does not make any alteration to the legal position. The cost of the new house has been borne for all practical purposes by the War Damage Commission. It has not fallen on the landlord. That house is substantially the same as the old one. It is annexed to and part of the land which was let under the tenancy, and, therefore, it is now included in the tenancy which has never been determined. The tenant, Mrs. Simper, is still the tenant of the premises, and is entitled to possession of them.
Similar view has been taken in Denman v. Brise (1948) 2 All ER 141.
12. In view of these rulings, it can be safely concluded that the tenancy of the plaintiffs over Parcha Shuda land (in dispute) was never determined nor was the same surrendered. Therefore, the learned first appellate court erred in holding that the disputed property stood reverted to the defendant after constructions over the said land became dilapidated. The findings recorded by the learned first appellate court are not sustainable either on fact or on law. The tenancy of the plaintiffs remained subsisting even after the constructions over the disputed land became dilapidated. Therefore, the judgment and decree passed by first appellate court deserves to be set aside and the judgment and decree passed by the trial court deserves to be restored.
13. The second appeal is allowed.
14. The judgment and decree passed by Civil Judge, Faizabad in Civil Appeal No. 22 of 1978 is hereby set aside and the judgment and decree passed by Additional Munsif IFaizabad in O.S. No. 364 of 1971 is/hereby up held.