RAMDAS Vs. SHREE RAM LAKSHMAN JANKI

JUDGEMENT

(1.) These two appeals arise out of the same suit filed on behalf of a deity Sri Ram Lakshman Janki, through Durga Prasad, 'Sarbarakar' of the deity. Second Appeal No. 879 of 1949 has been filed by defendant 1, and Second Appeal No. 1012 of 1949 has been filed by defendant 2. Defendant 3 is one Mst. Vidyawati, who took no interest in the case, because she had executed a deed of relinquishment in favour of the plaintiff. Briefly put the facts of the case are these.

(2.) House No. 76/100 situated in Coolie Bazar, Kanpur, along with other property belonged to one Smt. Janki Kuar. It is not disputed by any of the parties that Smt. Janki Kuer was the absolute owner of this house. Smt. Janki Kuar died on 6-6-1946, and the case of the plaintiff is that Smt. Janki Kuar executed a will on 2-6-1946 bequeathing the house mentioned above, to the plaintiff idol, and appointing Durga Prasad as the 'Sarbarakar' of the idol. The plaintiff thus became the owner of this house, ad it is said that defendant 1, who was admittedly a tenant of Smt. Janki Kuar in the house, paid one month's rent to Durga Prasad as 'Sarbarakar' of the plaintiff. After that defendant 1 refused to pay rent to the plaintiff, and the plaintiff brought a suit against the said defendant in the Court of the Judge of Small Causes at Kanpur. The suit was numbered as suit No. 191 of 1947. Defendant 1 filed a written statement in the suit clearly denying the plaintiff's title to the house, and the learned Small Cause Court Judge returned the plaint because the question of title to immoveable property was raised in the suit, by the said defendant. After the return of the plaint, on 28-7-1947, the plaintiff gave a notice to defendant 1 terminating his tenancy on the ground of forfeiture, and asked the defendant to vacate the house by, 5-8-1947. After the expiry of the period mentioned in the notice, the present suit was filed, and the reliefs claimed in the plaint were that defendant 1 be ejected from the house, and a decree be passed against him for the recovery of Rs. 122/1/- as arrears of rent at the rate of Rs. 9/- per mensem. After the date fixed in the notice, the defendant was treated as a trespasser and the sum of Rs. 9/per mensem was claimed as being mesne profits instead of rent as from the date. The claim for ejectment of defendant 1 was based on two grounds. The first ground was (hat the defendant had denied the plaintiff's title, and this denial acted as forfeiture of the defendant's tenancy. The second ground was that the defendant had committed wilful default in the payment of rent. Defendant 2 was added as a party because he was a brother of Smt. Janki Kuar, and defendant 3 was impleaded as she had previously alleged herself to be the daughter of Smt. Janki Kuar.

(3.) The main pleas taken in defence by defendant 1 were that the allegations contained in the written statement filed by the defendant in Suit No. 191 of 1947 did not effect forfeiture of his tenancy, and that there had been no wilful default by the defendant in the payment of rent. The defendant admitted that he had taken the house on rent from Smt. Janki Kuar. but pleaded that, after her death. Smt. Vidyawati, defendant 3, took possession of her properties alleging herself to be the daughter of Smt. Janki Kuar, and defendant 1 in good faith paid a sum of Rs. 108/- to her as advance rent for a year. He denied ever having paid rent to Durga Prasad, and did not admit the will said to have been executed by Smt. Janki Kuar in favour of the plaintiff. The main defence of defendant 2 was that the alleged will dated 2-6-1946 was not genuine, and the plaintiff was, therefore, not the owner of the property. On the other hand, defendant 2. as a brother of Smt. Jank; Kuar, inherited the house from her. As already stated, defendant 3, Smt. Vidyawati, did not contest the Suit at all, as she had executed a deed of relinquishment in favour of the plaintiff and had received a sum of Rs. 4000/- as consideration for executing the deed.