WIDOW OF SARDAR ALI Vs. KARUNA SHANKER DUBEY

JUDGEMENT

(1.) IN respect of certain piece of land let out by Karuna Shankar plaintiff-respondent No. 1 to Sardar Ali, the deceased husband of defendant-appellant No. 1, the plaintiff-respondent No. 1 filed a suit for recovery of Rs. 144.83 p. as arrears of rent and damages and for eviction therefrom after a notice dated February 11, 1969 of termination served on February 13, 1969 on Sardar Ali with the demand of rent at the rate of Rs. 10/- per month. During the pendency of the suit Karuna Shankar transferred the property to the respondent No. 2, Mitargan Sahakari Grah Nirman Samiti which accordingly as impleaded as the co-plaintiff.

(2.) THE case of the defendant Sardar Ali was that on the land in question he had made pucca thatched structure in the knowledge of Karuna Shankar brother, Ram Shankar Dubey and, therefore, the suit was defective for not seeking the relief for demolition of those structures. It was next pleaded that the notice of termination of tenancy was invalid because it purports to terminate the tenancy immediately and also because the sons of Karuna Shankar did not join it, although the property was the ancestral property of Karuna Shankar. It was pleaded that the plaintiff's claim of rent at the rate of Rs. 10/- per month was wrong and the correct rent was Rs. 4/- per month and that since he had paid the entire arrears on March 10, 1969 per month and that since he had paid the entire arrears on March 10, 1969 i.e. within one month of the date of service of the notice, the suit was barred by the provision of Section 20(2)(a) of the U.P. Act 13 of 1972. The acceptance of arrears, it was said, constituted waiver of the notice to quit. It was lastly said that the defendants were entitled to the protection of Section 29-A of U.P. Act 13 of 1972 because construction on the disputed land had been made within the knowledge of the plaintiff who had not raised any objection.

(3.) THE trial Court held that the defendant had paid the entire arrears of rent within one month of the service of the notice of demand and therefore he was not a defaulter, the appellate Court did not agree with the finding and said that the defendants had failed to prove the payment in question.