HAKIM ZIAUL ISLAM Vs. MOHD RAFI

JUDGEMENT

(1.) THIS is a defendant tenant's appeal from an appellate decree of ejectment and recovery of arrears of rent and damages from the house in suit. The court of first instance had dismissed the plaintiff landlord's suit on the finding that no relationship of landlord and tenant exist ed between the parties and that the notice terminating the tenancy was invalid. The lower appellate court reversed the finding of the learned Munsif on both the material issues and decreed the plaintiff-landlord's suit.

(2.) ON behalf of defendant-appellant two grounds have been raised in support of the appeal. The first ground was that one Mohammad Razi to whom the defendant had been paying rent was a necessary party to the suit and the suit was bad for non-impleading of the necessary party, the plaintiff having refused to make Mohammad Razi a party. This argument seems to be based on the plea raised in the written state ment that Mohammad Rafi was not the land lord, and it was Mohammad Razi who was the landlord to whom the defendant had been paying the rent. A statement was made by the Plaintiff's counsel at the trial that the plaintiff was not prepared to con vert the suit into a title suit and implead Mohammad Razi. An issue then was fram ed on the question whether relationship of landlord and tenant existed between the parties. Admittedly there was no documen tary evidence in support of the case of the plaintiff that the defendant was his tenant. Oral evidence was adduced for establishing the contract of tenancy. The learned Mun sif who tried the suit disbelieved the evi dence and held that the plaintiff failed to establish the contract of tenancy. The lower appellate Court, however, relied upon the oral evidence of the plaintiff and held that it established the relationship of landlord and tenant between the plaintiff and defen dant. This finding recorded by the lower appellate court has not been shown to be vitiated and is binding in second appeal. That being the position there remains no substance in the argument that Mohammad Razi was a necessary party in the suit.

(3.) THE notice, a -copy of which is Ex. V on record, is dated 7-10-1963 and was served on the defendant on 8-10-1963. It is a combined notice demanding arrears of rent and calling upon the defendant to vacate the house. The material part of the notice translated by me and relevant for my purposes is as follows: