CHANDRIKA PRASAD Vs. SUKHDIBYA DEVI

JUDGEMENT

(1.) THIS appeal is by the Defendant. The brief facts are these. The suit was for ejectment, damages for use and occupation etc. The Plaintiff alleged that the accommodation in question was a post -1951 construction and the Defendant was the tenant at a rent of Rs. 16/ - per month and the arrears of rent for the period from 1st January 1962 to 31st August 1965 were not paid within one month of the service of notice of demand and, therefore, the Defendant became a defaulter and liable to be ejected under Section 3(1)(a) of the U.P. Act III of 1947. By the notice of demand the tenancy was also determined.

(2.) THE Defendant contested the suit. Various pleas were set up in defence but we are not concerned in the instant appeal with the merits of the same. The finding of both the Courts below is that the Defendant was a defaulter and, therefore, he was liable to be evicted under Section 3(1)(a) of the U.P. Act III of 1947. However, the trial Court dismissed the suit for ejectment on the ground that one of the three Plaintiffs, namely Smt. Vidyawati, died during the pendency of the suit on 23rd February 1966 and her legal representatives were not brought on record during the statutory period of 90 days and therefore, the suit stood abated. Further, the suit was bad on account of the absence of the said necessary parties, namely the legal representatives of Smt. Vidyawati and, therefore, the said Court held that an effective decree of ejectment could not be passed behind the back of the said legal representatives of the deceased Plaintiff No. 2. The Plaintiffs on record filed an appeal and the lower appellate Court allowed the same. The suit for ejectment and for the recovery of mesne profits was decreed. The suit for the recovery of the arrears of rent, however, remained dismissed as in the trial Court.

(3.) I have heard the learned Counsel, and in my view neither the appeal nor the Cross -Objection deserves to be allowed. In other words, I agree with the judgment passed by the lower appellate Court. Mr. Naithani learned Counsel for the Appellant, did not contest the position that in the case of trespassers it was open to one of the co -owners to sue for ejectment. This law seems to be well settled, inter alia, in view of the following authorities: (1) Ram Adhar v. Gaya Din, 1955 ALJ 458, (2) Rama Motibhai v. Dalwadi Tupoo Ram : AIR 1956 Bom. 264, and (3) Shivangouda Lingangouda v. Cangawwa Rasappa, AIR 1967 Mys 143.