BASESHWAR DAYAL Vs. NAND KISHORE AND ANOTHER

JUDGEMENT

(1.) THIS is a Defendant's appeal, arising out of a suit for recovery of possession over a portion of bungalow in Meerut Cantonment and some land lying in front of it, and for recovery of Rs. 1100/ - as arrears of rent from 1.8 59 to 31.5.60, and for Rs. 1270/ - towards mesne profits from 1.6.60 to 17.5.61. The Plaintiff Respondent purchased the abovementioned bungalow and land by a sale deed dated 10th April, 1961 which purported to transfer the ownership of the property and also the right to collect arrears of rent from 1.8.59 to 31.5. 60, and, thereafter, mesne profits in respect of the accommodation in dispute, and the suit was filed on 19.5.60. Before the sale, the Plaintiff's vendor had, in the capacity of the landlord, given several notices to the Defendant Respondent with the object of terminating the tenancy of the Defendant Appellant and demanded arrears of lent. The notice which was the basis for the suit for ejectment in this case was dated 4th April, 1960. The Plaintiff's case was that this notice complied with the requirements of Section 106 of the Transfer of Property Act as well as Section 3 of the U.P. (Temp.) Control of Rent and Eviction Act, III, 1947 (hereinafter referred to as the Act), and that it terminated the tenancy with effect from 31.5.60, after calling upon the Defendant Appellant to pay up arrears o rent for more than three months within one month of the service of the notice of demand upon him. The contesting Defendant Appellant was alleged to be a month to month tenant together with Defendant No. 1 who did not contest the Plaintiff's claim. The Defendant Appellant, however, denied that he has committed any default in the payment of rent, and he alleged that he had made payments towards rent in cash and in kind which wiped off the liability of the Defendant Appellant to pay rent except to the extent of Rs. 194/4/ -on the date of purchase by the Plaintiff Respondent. The Defendant Appellant also alleged that the Plaintiff's predecessor in interest went on postponing acceptance of rent due which had to be sent by Money Order but was refused. As regards the notice of demand of rent and termination of tenancy, apart from vaguely pleading that the notice was illegal, the Defendant Appellant only set up the case that the notice of demand sent by the plaintiffs predecessor in interest could not be taken advantage of by the Plaintiff. No other case was set up regarding the invalidity of this notice.

(2.) THE trial court held that the plea of payment by the Defendant Appellant was untruthful. It also found that there had been a wilful default in the payment of rent. It, therefore, decreed the Plaintiff's suit for possession over the bungalow and land in suit after the ejectment of the Defendant Appellant, and for the recovery of rent upto 31.5.1960, and of mesne profits after 10.4.1961, when the Plaintiff Respondent became the owner of the bungalow and the land. The claim for mesne profits from 1st June to 9th April 1961 was dismissed by the trial court on the ground that this was hit by the provisions of Section 6(e) of the Transfer of Property Act. The Defendant Appellant appealed against the decree for his ejectment and for the arrears of rent and for mesne profits from 10.4.61 onwards. The Plaintiff Respondent filed a cross objection against the rejection of his claim for mesne profit from 1st June 1960 to 9th April 1961. The lower appellate court dismissed the Defendant's appeal and also the Plaintiff's cross objection. There are, there -fore, a Defendant's second appeal and a Plaintiff's cross -objection before me. It has been argued on behalf of the Defendant Appellant that the notice of demand, dated 4th April 1960, was not capable of providing the Plaintiff Respondent with a cause of action for a suit for the ejectment of the Defendant Appellant. The argument was that the right conferred by Section 3(1)(a) of the Act was a personal right of the particular landlord who had served the notice upon the Defendant tenant. It was argued by Mr. S.N. Misra, appearing for the Appellant, that the personal and individual right of a landlord could not be taken advantage of by his successor in interest. Reliance was placed on behalf of the Appellant on the case of Sajjan Singh v. Jamuna Bala (1) (AIR 1960 All. 410) in order to support the contention that rights conferred by Section 3(1) (a) were personal rights, In this case, it was held by my brother, Dhavan,J.:

(3.) IT is apparent that Section '3 of the Act does not really confer rights upon any persons. It only imposes a restriction upon the rights of all landlords in general who may be governed by the provisions of the Act to file suits against their tenants. This general restriction upon landlords, within areas to which the Act applies, is subject to certain exceptions made in favour of landlords in certain specified contingencies.