MAHIPAL SINGH Vs. MAM CHAND

JUDGEMENT

(1.) This second appeal arises out of a suit for the recovery of arrears of rent for the preceding three years and for ejectment of the defendant under Cl. (a) of sub-Sec. (1) of Sec. 3 of the U.P. Control of Rent and Eviction Act, 3 of 1947 (to be referred to hereafter as the Act). The defendant was a tenant of the plaintiff for about 10 years by the time the suit was filed and according to the plaintiff's allegations no rent was paid by him at all during that period. The plaintiff, therefore, served a notice of demand under Cl. (a) of sub-Sec. (1) of Sec. 3 of the Act on him, mentioning the entire arrears for the preceding ten years and also a notice under Sec. 106 of the Transfer of Property Act. The defendant sent a money order for five year's rent, but the plaintiff refused to accept the same, and filed this.suit for his ejectment. He, however, claimed arrears of rent in the suit for only three years. The defendant alleged that rent for the first five years had already been paid by him, and that the rent for the remaining five years was sent by him by money order, which the plaintiff refused to accept and that, therefore, he was not liable to be ejected. This contention was accepted by the Munsif, who dismissed the suit for ejectment, but decreed the suit for arrears of rent for the last three years. The plaintiff went up in appeal, and the appellate court held that no payment was made by the defendant towards the rent for the first five years, that rent for that period was also due and that, as the defendant sent the money order for five year's rent only, there was default in the payment of rent within the meaning of Sec. 3 (1) (a) of the Act. The suit for ejectment of the defendant was also, therefore, decreed in appeal.

(2.) The first question, which was raised on behalf of the defendant-appellant in this second appeal, was about the payment of rent for the first five years. The finding recorded by the Civil Judge in respect of that question is, however, a finding of fact based on evidence, and cannot, therefore, be interfered with in second appeal.

(3.) The only other question urged in this appeal was as to whether the plaintiff could serve a notice of demand under Cl, (a) of sub-Sec. (I) of Sec. 3 of the Act in respect of even those arrears of rent which had already become barred by time, and in respect of which no suit for recovery could be filed, and if non-payment of such arrears would also entail the consequences contemplated in Sec. 3 of the Act.