RAM PRASAD RAI Vs. RAGHUNATH PRASAD

JUDGEMENT

(1.) THIS defendant's Se cond Civil Appeal is directed against the judgment and decree of the Civil Judge Mo hanlalganj, Lucknow dismissing the appeal. The defendant-appellant had been in occu pation of a house under an allotment order of the year 1953. The owner of the house at that time was Jamuna Prasad. Subsequent ly sometime in the year 1961 the heirs of Jamuna Prasad transferred the house to Sri Sampat and Smt. Makhana. On the death of Sampat, Smt. Makhana continued to be the owner of the house. On 7-6-1965 Smt. Makhana executed a will in favour of Raj Dei. Smt. Makhana died on 25-6-65. Raj Dei sold the house to the plaintiffs in Novem ber 1966. Thereafter in May 1967 plain tiff-respondent sent a notice under Section 106 of the Transfer of Property Act demanding rent and terminating the tenancy. The defen dant-appellant replied to the notice and dis puted the title of the plaintiff and contend ed that after the death of Smt Makhana he has been the tenant of Rameshwar, a nephew of Smt. Makhana. The suit out of which this appeal arises was then filed for ejectment on the ground of default and for feiture of tenancy on the ground that the appellant had denied the title of the landlord. The trial Court decreed the suit and the de cree of the trial Court was confirmed by the lower appellate Court, hence this appeal.

(2.) LEARNED counsel for the appellant has contended that a suit for forfeiture of tenancy on the ground of denial of the land lord's title could not be filed without a notice intimating the intention of determin ing the lease. The contention of the learned counsel for the appellant on that point is right. Section 111 (g) Transfer of Property Act expressly provides that the forfeiture can only be effected after the landlord gives notice in writing to the lessee of his inten tion to determine the lease.

(3.) THE proposition laid down in the above case cannot be disputed. It is true that in the instant case there is nothing on record to show that Smt. Makhana or Smt. Raj Dei had ever informed the appellant about the transfer of the house to the plain tiffs. It has, however, to be borne in mind that the tenant appellant did not put the plaintiff to proof of his title. What he stat ed in his reply was that after the death of Smt. Makhana, her nephew Rameshwar had been in possession and he has been paying rent to Rameshwar. Had he paid rent to Rameshwar, then also there could be some substance in his submissions. The Courts below have given concurrent findings of fact that no rent was paid to Rameshwar and the plea raised by him was false. Plaintiff having proved his title was in law entitled the rent. The liability of the defendant for ejectment could be escaped only if he in bona fide belief had either paid rent to the old landlord or had bona fide doubted the plaintiff's title. Both the Courts have ne gatived the defendant-appellant's assertion of bona fide payment. The defendant cannot escape the liability of ejectment on his failure to make the payment or deposit in Court under Section 7 (c) of the Rent Control and Eviction Act. Prem Chand v. Onkar Dutt Sharma, 1972 All LJ 440 = (AIR 1972 All 415), on which the learned counsel for the respondent placed reliance does not lay down that bona fide payment to the original land lord will in no case absolve the defendant from the liability of the ejectment on the suit of a landlord transferee.