NARSINGH DAS Vs. PERMESHWARI DAS

JUDGEMENT

(1.) This is a defendant's Special Appeal. It arises out of a suit for arrears of rent and damages and for possession of the land in suit after the removal of the constructions raised thereon by the defendants. The respondent is the landlord of the premises in question. The instrument of lease which is alleged to be the basis of the tenancy of the defendant-appellants was executed on the 20th of July 1943 for a period of 30 years on an annual rent of Rs. 100/-. One of the terms of the lease was that the lessee would be liable to pay rent every third month, and that, in the event of the lessee failing to comply with this term, he would be liable to ejectment even before the expiry of the period for which the lease was granted, and the lessor would then have the right to get possession of the premises by removal of constructions erected thereon. The rent fell into arrears after the 20th of July 1950 and a sum of Rs. 333/14/-becunii! due for the period 20th of July 1950 to 19th November, 1953. The landlord, accordingly, sent a notice on the 22nd of November, 1953, determining the lease with effect from 20th December, 1953 and demanding the arrears due. The arrears of rent having not been paid the present suit was brought by the plaintiff-respondent for the possession of land after removal of constructions standing thereon, the recovery of the arrears of rent as well as damages from the 20th December, 1953, the date of the determination of the lease, upto the date of the institution of the suit and for ejectment.

(2.) The suit was contested by the defendants On several grounds. It was alleged that the original contract had been altered by the parties with the result that there was novation of the contract. It was further alleged that under the new contract it was agreed that defendant No. 1 would no longer be the tenant of the plaintiff and the defendant No. 2 would be substituted as the tenant in place of defendant No. 1. Defendant No. 1 was, therefore, no longer liable for rent. Further no valid notice to quit was given to defendant No. 2. The tenancy had not, therefore, been determined and no question of paying damages arose. Pleas relating to under-valuation of the suit and insufficiency of court-fee were also taken. The trial court recorded findings in favour of the plaintiff and decreed the suit.

(3.) The defendant-appellants' first appeal having been dismissed, they filed a second appeal in this Court. The second appeal was dismissed by a single. Judge of this Court who, having granted leave to the appellants, this Special Appeal was filed by them.