S.N Mehrotra, M.:— This is a plaintiffs' second appellate judgment of the Additional Commissioner, Varanasi Division dated 4-1-1968 in Appeal No. 885 of district Ghazipur arising out of a suit under sections 229-B/209 of the Act I of 1951.
2. The trial court decreed the plaintiff's suit declaring them as sirdars and holding defendants to be liable for ejectment from the land in dispute.
3. In appeal the lower appellate court arrived at the finding that defendant-respondents had been in possession of the suit land in lieu of interest (Bil-ewaj-good) on the basis of loan of Rs. 2100/- advanced to plaintiffs, and as such, they could not be ejected as trespassers so long as the aforesaid sum had not been repaid to them.
4. The case of the plaintiff-appellants was that they were the sirdars of the disputed plots and the defendants had wrongly got their names recorded as Qabiz in village records. Plaintiffs also claimed relief of possession in the alternative. Defendants, on the other hand, claimed to have been in possession of the disputed plots in lieu of interest, and on this basis pleaded immunity from ejectment as trespassers.
5. The main point urged by the learned counsel for the plaintiff-appellants in that the lower appellate court erred in law in granting a conditional decree on payment of Rs. 2100/- to the defendants. According to him the defendants were liable to outright ejectment under section 209 of the Z.A Act even if the theory of loan put forward by defendants was accepted. The pronote was executed by only one of the plaintiffs i.e Ramman, and as such this could not bind the other four brothers, who were no parties to the loan transaction.
6. In reply, the learned counsel for the defendant-respondents argued that on the concurrent findings recorded by the two courts below the status of the defendants was that of a licensee. Since they were not in possession without the consent of the plaintiffs, the suit under section 209 was not maintainable. According to him the licensee could not be ejected in a suit under section 209 of the Act.
7. I have perused the record and have considered the arguments advanced by both the learned counsel. Both the courts below have recorded a concurrent finding saying that Ramman, the eldest brother of the family, had executed a registered pronote on 13-5-63 for a sum of Rs. 2100/-, the amount which he had borrowed from the defendants and in lieu thereof they were put into possession. This finding of fact is amply supported by the evidence or record. The pronote had been duly proved. Babba, one of the plaintiffs, admitted in his cross-examination that his eldest brother Ramman had borrowed Rs. 2100/- from defendant Ram Narain, and that Ramman was the head of the family which was joint. In an earlier criminal case under section 145 Cr. P.C the defendants were found to be in possession over the land in dispute which was released in their favour. No doubt Chakbandi had taken place in the village, and the plaintiffs were declared sirdar of the land in dispute, but there was no finding of the consolidation courts of the defendants. The facts and circumstances of the case disclose that the defendants were in possession over the land in dispute with the consent of the plaintiffs, and as such the two ingredients required for a suit under section 209 of the Act may not seem to be fulfilled.
8. On the basis of the findings recorded above, the only point for decision remains as to whether the present suit under section 209 was at all maintainable. Where possession is transferred in lieu of interest of a loan advanced and the creditor is put into possession, the status of the creditor is that of a licensee from the date they were put into possession. This licence was revoked on the institution of the suit. Notice to vacate the possession was necessary in order to determine the licence, and for bringing a suit for ejectment against the licensee. It is a settled law that in the case of licence there is no transfer of interest. The licensee simply acquires right to occupy the land so long as the licence holds good. In the instant case possession was given without any conditions. In any case there is no mention of any condition in the pronote executed by Ramman. In the absence of any express stipulation to the contrary a permissive possession becomes without the consent of the rightful owner simply by institution of the suit for ejectment. A permissive possession becomes unlawful on the demand of possession and its refusal from the opposite side. On this aspect of the matter the finding of the courts below is that the defendants refused the delivery of possession on demand. However, the lower appellate court is perfectly justified in keeping into consideration the loan of Rs. 2100/- obtained by the plaintiffs from the defendants. Equity and good conscience demand that the defendants should be ejected only on payment of the loan given by them to the plaintiffs. No useful purpose is likely to be served by directing the parties to go to the civil court for this purpose alone in view of the specific findings recorded in para 6 above.
9. For the reasons given above I do not see any justification for interference with the order and decree passed by the lower appellate court. The learned counsel for the appellants failed to show me any definite case law prohibiting passing of a conditional decree in a suit under Section 209 of the Z.A Act. It is a settled law that a conditional decree could be passed against an Asami if he acquired the status of Asami on the basis of being a mortgagee of the land in question. In case conditional decree could be passed a suit under section 202, there is no reason why it could not be done, in the facts and circumstances detailed above, in the present suit under Section 209.
10. In the result, the second appeal stands dismissed with costs and counsel's fee of Rs. 30/-.