MADHUBALA Vs. BUDHIYA

JUDGEMENT

(1.) THIS is plaintiff's second appeal arising out of a suit filed by the plaintiff-appellants for ejectment of the respondent from the Khaprail in suit and for recovery of arrears of rent and damages for use and occupation amounting to Rs. 126/- and costs of the suit. The case of the appellants was that Jagdish Saran father of the plaintiff-appellants was the owner of the property in dispute, and after his death in July, 1967, they became the owners of the said property. It was alleged that the property in dispute was let out by Jagdish Saran to Kundan and that after the death of Kundan who died in February, 1969, the defendants-respondents Smt. Budhiya and Hari Ram, the widow and son of the deceased Kundan, continued to occupy the Khapraid in suit. It was further alleged that there was default on the part of the respondents in the payment of rent and as such the suit was filed for ejectment. The suit was contested by the respondents on the ground that they did not commit default in payment of rent. It was further alleged that the suit was bad for non-joinder of necessary parties an the ground that Kundan had other sons and daughters besides the respondent No. 2 Hari Ram and as such the suit was liable to fail on this ground.

(2.) THE trial court held that the respondents were defaulter in the eye of law. It was further held that the respondents alone resided in the Khaprail in suit and therefore, the suit is not bad for non-joinder of necessary parties. THE judgement of the trial court is dated 8th May, 1972. Against the said judgement an appeal was filed by the defendant respondents before the lower appellate court. THE lower appellate court allowed the appeal in part and dismissed the suit for ejectment by its judgement dated 27th November, 1972. THE lower appellate court was of the view that Hari Ram has five brothers and sisters more who inherited the tenancy right from the deceased Kundan and as such the suit for ejectment against the respondents alone was not maintainable.

(3.) LEARNED counsel for the respondents has however, in reply submitted that no plea in regard to surrender has been taken by the plaintiffs in the trial court as well as in the appellate court and as such this question cannot be permitted to be taken by the appellant in the second appeal. He has further urged that in view of the decision of this court in Ramesh Chand Bose v. Gopeshwar Prasad Sharma, 1976 All WC 301 : (AIR 1977 All 38) and Budh Sen v. Sheel Chandra Agarwal, 1978 (UP) RCC 131 : (AIR 1978 All 88), since admittedly all the heirs of Kundan have not been made parties to the suit, for ejectment the suit could not be decreed.