SHEO NATH SETH Vs. KRISHNA KUMARI DEVI

JUDGEMENT

(1.) THIS is a defendant's appeal arising out of a suit for his eject ment from the accommodation mentioned at the foot of the plaint and for recovery of arrears of rent and damages. The plaintiff alleged herself to be the owner of 2/3rd share in the house No. 53/163 situate in Mohalla Dethori Mahal, Varanasi. She fur ther alleged that the defendant was her ten ant of 4 rooms and one osara on the ground floor and one room on the upper floor in the said premises at a monthly rental of Rs. 8.00. A sum of Rs. 350.00 became due from the defendant as arrears of rent up to 31st May, 1956, for the recovery of which a suit was filed in the Court of Judge Small Causes, Varanasi. That suit was decreed but the defendant did not pay the amount of the decree nor did he pay any rent subsequent to 31st May, 1956. Consequently a compo site notice of demand and ejectment was given to the defendant on 18-1-1957, but he refus ed to accept the same and also failed to pay the arrears of rent within one month of the said notice.

(2.) THUS he became a defaulter within the meaning of Section 3 (i) (a) of the U. P. Act No. Ill of 1947 and as he failed to vacate the said accommodation and deliver vacant possession of the same to the plaintiff, the suit for the aforesaid reliefs was filed. The plaintiff alleged that the said house was for merly owned by the defendant and his bro thers, Mool Chandra and Ram Chandra. They had equal shares in the said house. The defendant sold his 1/3rd share in the said house to Sri Bhagwan Das Patel by a sale deed dated 9-2-1953 and executed a rent note on the same date i.e., 9-2-1953 in favour of Bhagwan Das Patel in respect of his 1/3rd share in the said house which he has sold to Bhagwan Das Patel agreeing to pay rent to Patel @ Rs. 8.00 p.m. The defendant thus became tenant in the said premises at the said rate. On 2-4-1955 Ram Chandra, the brother of the defendant sold his 1/3rd share to the plaintiff.

(3.) THERE had been no partition between the defendant and his brothers and the plaintiff was not entitled to possession of any specific portion of the said house until she got parti tion made by metes and bounds. In para 17 of the written statement it was contended that the suit for possession of specific por tion of the house without partition was mis conceived and untenable. The validity of the note was also challenged. On these plead ings the Trial Court framed a number of issues. It found that the defendant was the tenant of the premises in suit and that the relationship of landlord and tenant existed between the parties. It also found that the notice was duly served on the defendant but he failed to comply with the same and be came a defaulter. On these findings the suit was decreed. Against that decision the defen dant preferred an appeal.