TEJ SHANKER CHAUBEY Vs. TEJ NARAIN SINGH

JUDGEMENT

(1.) THIS is an appeal by defendant No. 2 arising out of a suit filed by the respondent No. 1 against the respondent No. 2 for ejectment of the defendants from the accommodation in question and for recovery of arrears of rent and damages. The plaintiff had alleged that the defendant No. 2 was a sub- tenant and that the defen dant No. 1 had committed a default within the meaning of Section 3 (1) (a) of the U. P. Act III of 1947 in payment of arrears of rent for more than three months after the service of notice of demand on him. He had also alleged that the defendant No. 1 had illegally and without the consent and permission sublet a portion of the accom modation in question to the defendant No. 2. On these two grounds he claimed a right to file a suit for eviction of the defen dant after termination of the tenancy by serving a notice under Section 106 of the Transfer of Property Act. Both the defen dants contested the suit and filed a separate Written statement. In para. 10 of the writ ten statement of defendant No. 1 it was alleged that he allowed defendant No. 2 to occupy a portion of the ground floor of the house in dispute with effect from 1-5-1962 as a licensee with the consent and permis sion of the plaintiff's father.

(2.) IN para, n of the written statement it was alleged that after some time it was agreed between the defendant No. 1 and the defendant No. 2 that the latter would pay a sum of Rs. 25.00p.m. by way of rent to the defendant No. 1 for use and occupation of the portion occu pied by him. In his written statement the defendant No. 2 pleaded that he took the lower portion of the house in question on 15th December, 1960 from the plaintiff on monthly rent of Rs. 30.00. It was further alleged that he was a tenant of the plaintiff, and was paying the rent regularly to him. He also alleged that he did not even see Ram Roop Pandey defendant No. 1 and did not know him hence the question of sub-tenancy did not arise. In para. 20 of the written statement he has asserted that he was not the sub-tenant of Ram Roop Pandey. In para. 23 of the written state ment it was alleged that the suit of the plaintiff for ejectment against him was bad as his tenancy had not been terminated in accordance with law. The trial Court found that the defendant No. 1 had committed the default in making payment of rent and the defendant No. 2 was not the tenant of the plaintiff as alleged by him. It also held that the lower portion of the house in dis pute was sublet to the defendant No. 2 at the rate of Rs. 25.00 p.m. by the defendant No. 1. The trial Court, therefore, decreed the suit as prayed. On appeal by the de fendant No. 2 the finding recorded by the trial Court to the effect that the defendant No. 2 was the sub-tenant of the defendant No. 1 was upheld. The appellate Court also confirmed the finding of the trial Court that the defendant No. 2 was not the ten ant of the plaintiff. On these findings the decree passed by the trial Court was con firmed and the appeal was dismissed. Ag grieved, the defenadnt No. 2 has now come to this court in second appeal.

(3.) IN para. 4 of the plaint the plaintiff had averred that the defendant No. 1 had sublet the lower portion of the house in question to the defendant No. 2 sometime in December, 1963. In paras. 10 and 11 of the written statement the defen dant No. 1 had stated that he had allowed the defendant No. 2 to occupy the ground floor accommodation as his licensee with effect from 1st May, 1962 whereas in para. 11 of his written statement the defendant No. 2 had contended that he came to occupy the lower portion of the said house on 15th December, 1960 as a tenant of the plaintiff at a monthly rent of Rs. 30.00 p.m. The defendant No. 1 had further pleaded that he had allowed the defendant No. 2 to occupy this accommodation with the con sent of the plaintiff whereas the defendant No. 2 pleaded that he was not the sub-ten' ant of the defendant No. 1.