Sri Narkandeshwar Mahadeoji Mehraj v. Gopal Dass — 1968 DIGILAW 322 (ALL)

JUDGMENT Lakshmi Prasad, J. - These two appeals have been referred by a learned single Judge of this Court by the order dated 3rd May, 1967. Since they arise out of one and the same suit, they can conveniently be disposed of by a single judgment. 2. Suit No. 28 of 1953 giving rise to these appeals was filed by Pandit Ram Rakhan in the Court of Civil Judge, Mohanlalganj at Lucknow. Pandit Ram Rakhan claims himself to be a co-sharer to the extent of eight annas four pies and 12 kirants share in the building and land appurtenant to it known as Hamid Manzil. He approached the Court with the allegation that about a fortnight before the date of the suit Gopal Das defendant No. 1 started making unauthorized constructions in front of the main building called Hamid Manzil on the land appurtenant to it and completed it despite a telegram and a letter sent under a registered cover to him requiring him to resist from proceeding with the un-authorised constructions. In the plan attached to the plaint the unathorised constructions are indicated by letters ABCD. He accordingly prayed that a decree for possession be passed against Gopal Dass over the land marked by letters ABCD in the plan attached to the plaint by demolition of the unauthorised constructions raised on it and a decree for injunction be passed against Gopal Das restraining him from making any further constructions on the land of the plaintiff. 3. He impleaded Sri Arif Raza son of Badshah Husain and Srimati Nawab Mehdi Begam wife of Badshah Husain as defendants 2 and 3 on the ground that they are co-sharers in the building in question and own the remaining share. 4. The claim was contested by Gopal Das. He asserted that he got a portion of the premises known as Hamid Manzil including the open land appurtenant to it allotted in his favour from the Rent Control and Eviction Officer, Lucknow by an order dated 22nd April, 1953 and came into its possession in pursuance of the said direction given to Badshah Husain guardian of defendant No. 2, a minor. He further alleged that after coming into possession he obtained the permission of Badshah Hussain to repair the building which was in a very bad condition and to erect a temporary structure covered by corrugated tin sheets on the open land in order to carry on his business of running a press on condition that the amount spent on repairs would be adjusted against the rent whereas the material of the temporary construction to be built on the open land would continue to belong to him and he would have the right to remove the same on the expiry of the tenancy. He pleaded that he being a tenant had every right to continue to be in possession of the disputed land and the plaintiff was in no circumstance entitled to a decree for possession. He denied that the plaintiff was a co-sharer in the disputed property. 5. The trial Court framed the following issues :- 1. Whether defendant No. 1 is the tenant of the property in suit ? If so, its effect ? 2. Whether the plaintiff is a co-sharer in the property in suit ? 3. To what relief, if any, is the plaintiff entitled ? On issue No. 1 the trial Court held that Gopal Das is a tenant of the property in dispute and accordingly he cannot be ejected otherwise than in due course of law. It held issue No. 2 in favour of the plaintiff that the plaintiff was a co-sharer in the disputed property to the extent of 8 annas 4 pies and 12 kirants share. Under issue No. 3 it came to the conclusion that just as a co-share has no right to make any construction on a joint land Gopal Das, even if he did so after obtaining the permission of Badshah Husain, could get no better right with the result that the plaintiff, another co-sharer, was entitled to have the disputed constructions demolished and to get a decree for injunction restraining Gopal Das from making any constructions on the land in dispute. It accordingly, while not allowing the decree for possession, granted a decree for the demolition of the disputed constructions and for injunction restraining Gopal Das from making any construction on the disputed land. 6. It accordingly, while not allowing the decree for possession, granted a decree for the demolition of the disputed constructions and for injunction restraining Gopal Das from making any construction on the disputed land. 6. Aggrieved by the said decree to the extent it has been decreed against Gopal Das, he has filed Appeal No. 38 of 1954 whereas Pandit Ram Rakhan preferred the other appeal questioning the decision not allowing the relief of possession. Ram Rakhan died during the pendency of the appeal and has been substituted by the present appellant Shri Narkendeshwar Mahadeoji Maharaj. 7. When these appeals came up before a learned single Judge of this Court he by his order dated 28th August, 1964 remitted the following issues to the trial Court for its finding thereon :- 1. Whether the structures sought to be demolished are permanent structures within the meaning of Section 108(p) of the Transfer of Property Act (Act IV of 1882) ? 2. When if the said constructions are of a permanent nature is it open to the plaintiff as a co-sharer to sue for demolition of the same when the said constructions were constructed with the consent of other co-sharers ? By its order dated 12th March, 1965 the trial Court has returned its findings on the above-mentioned issues. It answers both the issues in the affirmative. 8. We have heard the learned counsel for the parties at some length. We now proceed to dispose of the various points urged before us in the order in which they were urged. 9. The first point in controversy is if or not Gopal Das can be taken to be a tenant of all the co-sharers and whether the open land in question in included in the tenancy of Gopal Das. It has been no more in controversy before us that the plaintiff-appellant is a co-sharer in the disputed property to the extent of 8 annas 4 pies and 12 kirants share. The order of allotment dated 22nd April, 1953 passed in favour of Gopal Das is Ext. A-l. It appears on page 63 of the paper book of the plaintiff's appeal. It is directed to Badshah Husain. The order of allotment dated 22nd April, 1953 passed in favour of Gopal Das is Ext. A-l. It appears on page 63 of the paper book of the plaintiff's appeal. It is directed to Badshah Husain. The property which it directs to be let to Gopal Das is described as "portion of house No. D8/145 in Hamid Manzil, Niamatullan "Road, Aminabad, Lucknow." The facts no more in controversy are that subsequent to his purchase at an auction sale of 8 annas 4 pies and 12 kirants share in the disputed property under the sale certificate dated 5th October, 1942 Ram Rakhan got formal delivery of possession on 16th September, 1949 and then filed suit No. 72/70 of 1950 for partition of his share in the disputed property and for profits against Arif Raza and another. It resulted in a preliminary decree dated 23rd September, 1952 as appears from the copy of judgment in the said suit Ext. 12 (page 43 of the paper book of the plaintiffs appeal). The allegation of Ram Rakhan in that suit was in subsequent to his auction-purchase he had obtained formal delivery of possession and the property was in occupation of the tenants from whom Arif Raza and another defendant's in that suit realised rent. Learned counsel for the parties admitted before us that for one reason or the other the said preliminary decree dated 23rd September, 1952 has not yet been made final. So, there is no escape from the conclusion that even though the plaintiff is a co-sharer in the disputed property to the extent of a little more than half share it has continued to be under the management of respondents Nos. 2 and 3 in the plaintiff's appeal and as such, the direction issued by the Rent Control and Eviction Officer under Section 7(2) of the U.P. (Temporary) Control of Rent and Eviction Act could not but be given to Badshah Husain who continued to manage the property on behalf of his son and wife and also on behalf of the plaintiff with the result that when Badshah Husain let out the accommodation to Gopal Das he became tenant of all the co-sharers including the plaintiff. We accordingly agree with the view of the trial Court that as a result of the order of allotment passed in favour of Gopal Das in pursuance of which he entered into possession of the accommodation in question he became a tenant not only of respondents 2 and 3 but also of the plaintiff. 10. As regards the question if or not the open land appurtenant to the building is included in the tenancy resulting in favour of Gopal Das from the order of allotment, dated 22nd April, 1953, we find that the order of allotment is not quite explicit on the point. As appears from a persual of the allegations in the plaint, the plaintiff approached the Court totally ignoring the order of allotment passed in favour of Gopal Das and treating him as a mere trespasser in respect of the disputed piece of land indicated by letters ABCD in the plaint. As against that Gopal Das pleaded in his written-statement that he was a tenant of a portion of Hamid Manzil including the open land in form of it. Badshah Husain D.W. 1 has stated that the Rent Control and Eviction Officer allotted ground floor of Hamid Manzil to Gopal Das including the vacant land in front of it. In the absence of any specific evidence to indicate that the land appurtenant to Hamid Manzil was excluded from the order of allotment passed in favour of Gopal Das in respect of the ground floor of Hamid Manzil must be presumed that such land went with the ground floor. We have thus no hesitation in coming to conclusion that the disputed land which is a portion of the open vacant land in front of the ground floor allotted to Gopal Das is included in the tenancy created in favour of Gopal Das in pursuance to the order of allotment dated 22nd April, 1953. 11. The next point in controversy is if the disputed constructions can be held to be "permanent structure" within the meaning of that expression as used in Section 108(p) of the Transfer of Property Act. The finding of the trial Court on that question is in the affirmative. That finding has been seriously challenged by Sri Naziruddin appearing for Gopal Das. The next point in controversy is if the disputed constructions can be held to be "permanent structure" within the meaning of that expression as used in Section 108(p) of the Transfer of Property Act. The finding of the trial Court on that question is in the affirmative. That finding has been seriously challenged by Sri Naziruddin appearing for Gopal Das. Disputed construction admittedly consist of brick walls which have been plastered with cement and cover an area of 20'x45'-4" on one side and 49'3" on the other. It is also not in controversy that these walls have been roofed with tin-sheets which rest on Ballis. There has been some controversy with regard to the foundation. According to the report of the Commissioner, the foundation is 2'-4" deep including the plinth. According to Gopal Das, the foundation exclusive of plinth consists of only two layers. Likewise there has been some controversy if the bricks used are first class bricks or second class bricks. It is admitted on all hands that press machines are fixed in the disputed constructions and the same are electrically run. The contention of the learned counsel for Gopal Das is that, having regard to the nature of the building and it situation in relation to Hamid Manzil, disputed constructions cannot be held to be "permanent structure". In support of his contention he relies on the decision of a learned single Judge of this Court in the case of Kamla Kant Misra v. Kishun Lal, 1956 ALJ 871. The observation on which reliance is placed occur on page 872. These run as below :- "The mere circumstances that the two rooms are made of pucca bricks, does not necessarily make them constructions of a permanent nature. A building made of pucca bricks may, in certain circumstances, be a temporary building. On the contrary a building made of mud walls with a thatch thereon may, in certain circumstances be a work of a permanent nature. Pucca and permanent are by no means synonymous terms. Similarly kuchcha and temporary do not mean the same thing. Suppose a cultivator makes a mud-house in a village abadi and places a thatch thereon with the intention of permanently occupying the house and living therein, he has made the construction of a permanent nature although the amount spent by him on the construction may be a very small one. Similarly kuchcha and temporary do not mean the same thing. Suppose a cultivator makes a mud-house in a village abadi and places a thatch thereon with the intention of permanently occupying the house and living therein, he has made the construction of a permanent nature although the amount spent by him on the construction may be a very small one. On the contrary building of pucca bricks may be erected temporarily. It has often been seen that where huge constructions are going on, Engineers and Overseers make temporary sheds in order to accommodate building materials or provide accommodation for the Engineers and Overseers who supervise the constructions. The idea in such cases is that such buildings would ultimately be removed. The building though made of pucca bricks are nonetheless buildings of a temporary nature. The real criterion, therefore, is not whether the building is made of pucca bricks or of kuchcha bricks but whether the idea in constructing them is to retain them for ever or to demolish them after re-achieving certain object." Thus the argument of the learned counsel is that in so far as Gopal Das made the disputed constructions with the permission of Badshah Hussain with a view to run his press business in it on express condition that he would remove the materials on the expiry of tenancy, it must be held that his intention in making the disputed construction was only to erect a temporary structure to serve a temporary purpose, namely, our attention to the case of Surya Properties Private Limited v. Bimalendu Nath Sarkar, AIR 1964 Calcutta 1. He plead reliance on the observations occurring on page 14 in paragraph 35 to the following effect :- "Now, whether a structure is permanent or not within the meaning of Section 108(p) of the Transfer of Property Act depends on various factors, which cannot be catalogued in detail or exhaustively enumerated." As against that, learned counsel for the plaintiff has placed reliance on the case of M/s Surya Properties Private Limited v. Bimalendu Nath Sarkar, AIR 1965 Calcutta 408, wherein the above mentioned Allahabad case in expressly dissented from. We are inclined to accept the view point expressed in 1965 Calcutta case. We are inclined to accept the view point expressed in 1965 Calcutta case. The phrase "permanent structure" cannot possibly be construed to mean "everlasting." Evidently the word "permanent" has been used in Section 108(p) of the Transfer of Property Act in order to distinguish it from "temporary". We are thus unable to follow the reasoning of the learned single Judge of this Court when he says that a construction raised with a particular purpose even though the same may lasts till the expiry of tenancy can in no circumstances be taken to be "permanent structure" with the meaning of that expression as used in Section 108(p) of the Transfer of Property Act. If the "permanent" is a relative term the question naturally arises relative to what. For purpose of Section 108(p) the answer cannot but be that it is relative to the term of the lease. So we are driven to the conclusion that the word "permanent" means "which lasts till the end of the term of the lease and cannot be construed to mean "everlasting" or to mean "which would last 100 years or 50 years." In 1965 Calcutta case Chatterjee, J., observes in paragraph 7 on page 412 :- "I would, therefore, be inclined to understand a "permanent structure" for purposes of Section 108(p) to mean a structure which is capable of lasting till the term of the lease and which is constructed in the way of being built-up as is a building." This Allahabad case came up for consideration in another Calcutta case Atul Chandra Lahiry v. Sonatan Daw, AIR 1962 Calcutta 78. Bose, J., observes :- "Although we are not inclined to subscribe out approval to all the propositions that have been formulated in this case by the learned Judge, we agree with him that the question whether a particular construction is a permanent structure or is merely of a temporary nature is a question which depends on the facts of each case and on the nature and extent of the particular construction and the intention or purpose for which the construction is made, may also be a relevant consideration is certain circumstances, but no hard and fast rule can be laid down with regard to this matter." Learned counsel for Gopal Das argued that is so far as the disputed constructions stand on open land away from the building itself, it is not possible to hold them "permanent structure" within the meaning of that expression as used in Section 108(p). We are unable to accept the contention. The very letter, dated 25th April, 1953 Ext. A-2 (Page 64 of the paper book of the plaintiff's appeal) by which Gopal Das sought permission of Badshah Hussain to make the disputed constructions indicates that his intention in making the disputed constructions was to retain the same till he continued to be a tenant of the portion of Hamid Manzil allotted in his favour. It is thus obvious that it was never the intention of Gopal Das in making the disputed constructions to have them temporarily for a certain purpose. Badshah Hussain D.W. 1 examined by Gopal Das as his witness states that as it was dangerous to fix a press in the building, so he gave permission for the tin-shed. It shall thus appear that the main purpose of Gopal Das for taking Hamid Manzil on rent was to run his business of press and when he found that the building was not suitable for the purpose he obtained the permission of Badshah Hussain to erect a construction of his own on the open land appurtenant to the building in order to run his business therein. Thus, considering the nature of the construction and its purpose as also the intention of Gopal Das in making it to be gathered from his own letter Ext.A-2, the inevitable conclusion is that the disputed constructions are "permanent structure" within the meaning of Section 108(p) of the Transfer of Property Act. We conclude accordingly. 12. Thus, considering the nature of the construction and its purpose as also the intention of Gopal Das in making it to be gathered from his own letter Ext.A-2, the inevitable conclusion is that the disputed constructions are "permanent structure" within the meaning of Section 108(p) of the Transfer of Property Act. We conclude accordingly. 12. The last point in controversy is if the plaintiff, one of the co-sharers is entitled to have the disputed constructions demolished notwithstanding the fact that he objected to their erection at the time these were being erected when the same came to be erected with the permission of the other co-sharers. As already indicated, the view taken by the trial Court is that if a co-sharer cannot himself make construction on joint land, the position of a person making the same with the permission of a co-sharer is no better and it is on that basis that the trial Court granted a decree for demolition to the plaintiff. This approach of the trial Court has been challenged by the learned counsel for Gopal Das, Sri Naziruddin. He contends that the decisions determining the rights of co-sharer inter se or of a co-sharer vis-a-vis the transferee of an other co-sharer have no application to the rights of a co-lessor vis-a-vis a lessee of all the lessors. The arguments of the learned counsel is that the right and the liabilities of the lessors and lessees are, in the absence of a contract to the contrary, to be governed by the provisions of Section 108 of the Transfer of Property Act. He points out that insofar as there is no express stipulation to the contrary between the parties it must be held that the rights of Gopal Das in the matter of making constructions are to be governed by Section 108(p) of the Transfer of Property Act. We are inclined to accept these arguments of the learned counsel. Thus the question in controversy has got to be determined with reference to the provisions of Section 108(p) of the Transfer of Property Act. We are inclined to accept these arguments of the learned counsel. Thus the question in controversy has got to be determined with reference to the provisions of Section 108(p) of the Transfer of Property Act. It says that a lessee must not, without the lessor's consent, erect on the leased property any permanent structure, except for agricultural purposes : Learned counsel argues that this provision lays down a rule of prohibition and the same is attracted only when the consent of all the lessors in a case where there is more than one lessor is missing. In other words, the argument is that in a case where there is more than one lessor if the lessee erects a permanent structure with the consent of one of them though without the consent of the other or others, he cannot be taken to have contravened the statutory stipulation contained in Section 108(p). The argument is no doubt ingenious but we are unable to accept it. As we read Section 108(p), we are of opinion that it contains a general rule of prohibition in regard to the right of a lessee to erect any permanent structure on the leased property subject to two exceptions, namely, (1) when the purpose of erection is an agricultural purpose; and (2) where the same is done with the "lessor's consent" which expression of course means all the lessors, "consent" where there is more than one lessor. The dictionary meanings of the word 'without" as given in Chambers Twentieth Century Dictionary is "outside or out of; beyond; not with; in absence of; not having; except; all but". In our view the expression "without the lessor's consent" occurring in Section 108(p) of the Transfer of Property Act provides an exception to the rule of prohibition contained therein. In other words the correct interpretation of Section 108(p) would be that a lessee cannot erect any permanent structure except with the lessor's consent. It cannot be construed to mean that erection of a permanent structure by a lessee is prohibited only where he is not able to obtain the consent of any of the lessors in a case where there is more than one lessor. It cannot be construed to mean that erection of a permanent structure by a lessee is prohibited only where he is not able to obtain the consent of any of the lessors in a case where there is more than one lessor. The proper construction on the other hand, would be that the lessee cannot erect a permanent structure without the lessor's consent i.e. unless he has been able to obtain the consent of all the lessors in a case where there is more than one lessor. We are accordingly of opinion that the mere fact that Gopal Das able to obtain the consent of some of the co-sharers as is borne out by Gopal Das's letter, dated 25th April, 1953 Ext. A-2 read with Badshah Husain's reply, dated 27th April, 1953 Ext. A-3 does not entitle Gopal Das to make a permanent structure on the disputed land. 13. The question, however still arises if the plaintiff one of the co-lessors is entitled to have such a construction demolished. The contention of learned counsel appearing for Gopal Das is that just as one of the many co-lessors has no right to determine the tenancy and eject the lessee, the plaintiff-appellant has no right to enforce the particular covenant of the lease in contravention of which Gopal Das is found to have made the disputed constructions. In support of his contention he places reliance on the case of Jadunandan Das v. Mt. Maho, AIR 1939 Patna 428, decided by a learned single Judge. This case no doubt supports the contention of the learned counsel. The material portion which occurs on page 430 runs as below : "It is not a case in which the plaintiff being one of joint proprietors sues for a sum of money and has co-proprietor declines to join as a plaintiff and the plaintiff suing claims the full amount but a case in which the co-proprietor of the plaintiff who is one of the defendants comes forward to support the defendants in proof of the agreement which the Judge in the Court below allowed the defendants to establish. That can only be construed as meaning that the co-proprietor who is on the side of the defendants is not enforcing the contract contained in the kabuliyat. That can only be construed as meaning that the co-proprietor who is on the side of the defendants is not enforcing the contract contained in the kabuliyat. In those circumstances it seems to me that the matter is covered by the decision that one of two joint lessors or lessee cannot enforce covenants of the lease. There are number of decisions of India but I refer to the decisions in T.M. Fairclough and Sons Limited v. Barliner, (1931)1 Ch. D. 60. It is true that in that case Maugham, J., was construing the law of Property Act of 1925 in England in which the word 'lease' was used, but that is immaterial as it was declaratory of the common law and the question that arose was whether the lessee being entitled to relief against forfeiture out of a number of lessees would be entitled to such relief in the absence of a joint claim by his joint lessees, and it was held that he was not." Though the learned Judge says in the above quoted observation that there are a number of decisions in India on the point, no such decision has been placed before us. We specifically put it to the learned counsel if there was any other decided case of any other High Court on this point. They expressed their inability to place any parallel decision before us. We have examined the English case referred to by the learned Judge. That was a case where the two joint lessees incurred forfeiture because of their failure to observe a certain covenant of the lease. The lessee brought a suit in ejectment. One of the two joint lessees sought relief against forfeiture whereas the other preferred to give up the lease. The two questions that Maugham, J., posed in the case were :- (1) Can the second defendant, one of the two joint lessees, make such an application (i.e. application seeking relief against forfeiture); and (2) If the application can be made, ought the Court, in its discretion, having regard to the proceedings and conduct of the parties under the provision of Section 146 of the law of Property Act, 1925, and to the other circumstances of the case, to grant such relief. While dealing with these two questions the learned Judge observes on page 66;- ".................but it does not in any way lead to the conclusion that if there are two or more joint lessees one of them can apply to the Court for relief; and there seems to me to be a very great objection to provisions which would enable him to apply to the Court unless the provision also in some way enabled the Court in granting relief to absolve the other joint lessee from future liability. The section is a provision in the nature of an indulgence to be given to a lessee, or to several lessees who have not complied with their contractual obligations. The effect of granting relief under that sub-section is to restore the lease as though it had never been forfeited. That is the result of Dundy v. Evans, (1910)1 KB 236. Accordingly, if I were to accede to the application on behalf of the second defendant, the result would be that the first defendant would continue to be liable under the onerous covenants contained in leases including the onerous obligation to rent up to the termination of the lease without it, may by, any prospect of being able to recoup himself by use the (sic) of the premises. In my opinion, Section 146, sub-section (2) can be applied in the present case only upon the application of the two joint lessees, and, no such application having been made, it seems to me that the Court has no jurisdiction to grant relief." 14. It is thus obvious that the considerations which weighed with the learned Judge in coming to a decision he gave on the facts of the case, do not at all arise on the facts of the case before us nor they appear to arise on the facts of the Patna case cited above. It may be that one of the joint lessors is not competent to determine the tenancy or to sue in ejectment, still we fail to see as to how it can be maintained in respect of any covenant of the lease regardless of its nature that the same cannot be enforced by one of the joint lessors. It may be that one of the joint lessors is not competent to determine the tenancy or to sue in ejectment, still we fail to see as to how it can be maintained in respect of any covenant of the lease regardless of its nature that the same cannot be enforced by one of the joint lessors. If there is an express stipulation in the lease that the lessee shall not make any construction on the leased property except with the consent of all the lessors, but the lessee actually erects constructions in violation of that stipulation after securing consent of some of the lessors than we fail to see as to how the non-consenting lessors can be denied the relief of demolition sought on the score that, according to the covenant of the lease, the lessee had no such right. We are thus unable to subscribe to the road proposition enunciated by the learned Judge in the Patna case. The necessary consequence of such a proposition is that a lessee can violate an express stipulation in the lease with impunity. That cannot possibly be permitted. By allowing a joint lessor to enforce such a covenant no injustice results to the lessee and the only effect thereof is that he is compelled to conform to the terms of the lease which he stipulated with his eyes open. In the instant case we get it from Badshah Husain D.W. 1 that he informed Gopal Das that plaintiff was also co-sharer in the property. If despite this knowledge on his part Gopal Das chose to ignore the plaintiff's telegram and letter dated 2nd May, 1953 Exts. 1 and 2 and to proceed with his constructions, evidently he did not do so at his peril. It is indeed surprising that despite having been told by Badshah Husain that plaintiff was a co-sharer in the disputed property, Gopal Das denied in his written-statement the plaintiff's assertion that he was a co-sharer. Because of the absence of any stipulation to the contrary between the parties, what is provided in Section 108(p) of the Transfer of Property Act must be taken to be one of the covenants of the lease held by Gopal Das. Because of the absence of any stipulation to the contrary between the parties, what is provided in Section 108(p) of the Transfer of Property Act must be taken to be one of the covenants of the lease held by Gopal Das. It thus follows according to our interpretation of Section 18(p) that Gopal Das had no right to erect a permanent structure on the leased property without the consent of all the co-sharers, i.e., the plaintiff-appellant and defendant-respondents 2 and 3. In the circumstances of the case where Gopal Das is found to have continued with the disputed constructions till their completion despite plaintiff's objection at the very outset, there appears no reason whatsoever as to why the plaintiff should not be allowed to have the particular covenant enforced. On the facts of the case the only manner in which that covenant can be enforced is by granting the plaintiff a decree for demolition and decree for injunction restraining Gopal Das from making any such constructions in future. That is exactly what has been done by the trial Court. 15. No other point was urged before us. In view of our decisions given on the various points, it follows that the appeal of Gopal Das must fail. The appeal of the plaintiff also cannot succeed because according to our finding the disputed land over which possession is sought is a part of the tenancy of Gopal Das and the plaintiff took no steps whatsoever to determine that tenancy according to law. In fact the plaintiff approached the Court on entirely different allegation which have been held to be incorrect. So the trial Court rightly refused to grant possession to the plaintiff. 16. In the end both the appeals are dismissed. We direct parties to bear their costs in this Court.