NANAK CHAND Vs. DAYA RAM

JUDGEMENT

(1.) Present second appeal is directed against the judgment and decree dtd. 30/8/1988 passed by learned III Addl. Civil Judge, Dehradun in Civil Appeal No. 52 of 1979 "Dayaram Vs. Bhagwan Dai", whereby the Appellate Court allowed the appeal and decreed the suit of the plaintiffs/respondents by reversing the judgment and decree of dismissal of suit passed by the trial Court.

(2.) Factual matrix of the case are that the plaintiff/respondent instituted a SCC suit No. 23 of 1976 in the Court of Judge, SCC with the averments that the plaintiff is the owner-landlord of the property bearing no. 69(old)/125 (new) Karanpur, Dehradun and Bhawani Bhikh, husband of the defendant, was a month to month tenant of the plaintiff at a monthly rent of Rs.60.00. The provisions of U.P. Act No. 13 of 1972 are applicable in the said property. The plaintiff sent a registered notice to Bhawani Bhik demanding the arrears of rent amounting to Rs.3060.00. The said notice was return back with the endorsement that the "addressee has passed away". The Bhwani Bhik died on 31/7/1975 leaving behind the defendant as his sole surviving legal heir. Thus, the defendant became tenant of the plaintiff, thereafter, when the tenant did not pay the due rent then the landlord on 22/8/1975, sent a notice to the tenant and demanding arrears and terminating her tenancy. It is alleged that despite services of notice the defendant neither vacated the said premises nor paid the arrears of rent, whereafter the respondent/landlord constrained to institute the suit against the tenant for recovery of rent and ejectment.

(3.) The defendant filed her written statement and it was emphatically denied that Late Bhawani Bhik was a tenant of the plaintiff in the property in question. It was further stated that there is no relationship of landlord and tenant between the plaintiff and late Bhawani Bhik. It is also stated that there is no question of any amount of arrears of rent for the period of 2/4/1971 to 1/7/1975 amounting to Rs.3060.00 due against late Bhawani Bhik. It is also stated that the defendant is sole owner of the property in question. It is also denied that after the death of Bhawani Bhik, the defendant became the tenant of said property. It is contended that the property in question originally belonged to late Bachu Gwala. Late Bhawani Bhik was Nivasa (daughter's son) of late Bachu Gwala, who had no other issues except the mother of Bhawani Bhik. Bhawani Bhik fell into bad company and developed habits of gambling and drinking and Bachu Gwala executed a Will dtd. 10/4/1932, whereby he revoked his previous Will, favouring Bhawani Bhik and bequeathed all his properties including the disputed property in favour of the defendant. It is also stated that the defendant became the absolute and exclusive owner of the property in question after the death of Shri Bachu Gawala and she has been in its possession and beneficial enjoyment since then to this date as its owner and she is neither husband of the defendant nor defendant is tenant of the plaintiff.