NASIRULLAH ALIAS CHIKHURI Vs. MOHD MURTAZA

JUDGEMENT

(1.) The defeated defendant has preferred this second appeal against the Judgment and decree dated 31.3.1980 passed by Sri R. Singh, the then learned IInd Additional District Judge, Ballia in Civil Appeal No. 224 of 1978 allowing the appeal, setting aside the judgment and decree of the trial court dated 27.7.1978 In Original Suit No. 12 of 1978 by which the trial court had dismissed the suit.

(2.) The respondent (hereinafter called the plaintiff), filed Suit No. 12 of 1978 against the appellant (hereinafter call the defendant) his real brother, for ejectment of the defendant from the premises in suit and for recovery of arrears of rent amounting to Rs. 50 and pendente lite and further damages at the rate of Rs. 15 per month. The case of the plaintiff, in brief, was that he was owner landlord of room shown in Schedule 'B' of the plaint and defendant was its tenant on monthly rental of Rs. 15. The defendant fell in arrears of rent from 1.4.1977 to 31.7.1977 which he did not pay despite the service of composite notice of demand and termination of tenancy dated 11.8.1977 and also failed to vacate the premises in question ; hence the suit.

(3.) The defendant contested the suit denying the relationship of landlord and tenant between the parties and contending that he was real brother of the plaintiff and house in question of which one room is subject-matter of suit was ancestral property of the parties. His father Fateh Mohammad had two wives. The plaintiff and defendant were born from the first wife and four sons were also born from the second wife. After the death of father of the parties, their step-mother and her sons got half share in the northern portion of house and remaining half portion in southern side came in the share of plaintiff and defendant. The southern half portion was further divided between the plaintiff and defendant and room in question came in the share of defendant. The defendant was occupying the above room as owner. The defendant also denied service of notice and raised other legal pleas.