MAHBOPB ULLAH Vs. JWALA PRASAD KAJRIWAL

JUDGEMENT

(1.) THIS is defendant's second appeal. Jwala Prasad Kajriwal, son of Ram Bilas and Bankey Behari Kaj riwal, son of Sunder Lal, respondents had filed a suit for ejectment from cer tain premises against Mahboob Ullah and also for arrears of rent. In the body of the plaint Bankey Behari (plaintiff No. 2) had described himself as 'Karta of the family' and 'adult son of Sunder Lal. The respondents came to court with the contention that plaintiff No. 1 Jwala Pra sad Kajriwal and Bankey Behari Kajri wal (plaintiff No. 2) are the owners of Hata No. 84/145 in dispute and that the defendant-appellant was the tenant of Quarter No. 12 of the aforesaid Hata on a monthly rent of Rs. 3.75 np. that the defendant had failed to pay rent from 1st June, 1962 and was in arrears of Rupees 63.60 np. The plaintiffs claimed to have served upon the defendant a notice dated 5-4-1963 putting an end to the ten ancy and demanding payment of arrears.

(2.) THE appellant-defendant denied that the plaintiffs are owners of the dis puted accommodation. He denied further that there was any relationship of land lord and'tenant between the parties and pleaded that Bankey Behari. plaintiff No. 2, was not the Karta of the family of the descendants of Sunder Lal and the des cendants of Sunder Lal do not form joint Hindu family. The defendant contested the right of Bankey Behari (plaintiff No. 2) to file a suit for ejectment and re covery of arrears of rent as Karta of the said family and raised the defence that the descendants of Sunder Lal could not recover any rent from the defendant for the period falling in the lifetime of Sun der Lal without obtaining a succession certificate. The defendants' case was that the accommodation was let out to him by one Lala Mangal Ram; that he had paid rent to Prem Nath Munim up to the end of August, 1963. There was also a plea questioning validity of the notice of ejectment and demand on the ground that plaintiffs 1 and 2- respondents not being the sole owners of the accommodation or landlords of the defendant they were not competent to put an end to his ten ancy. These were some of the main grounds raised in defence for the appel lant. The trial court held that plaintiffs 1 and 2 were not the sole owners of the accommodation in dispute; that there was no proof of relationship of landlord and tenant existing between the parties that the notice dated 5-4-1963 was not proved to have been served upon the defendant and, therefore, he did not commit default in the payment of rent within the mean ing of Section 3 (1) (a) of U. P. Act III of 1947 and that the plaintiffs were not proved to be the sole owners of that ac commodation and landlords of the defen dant had no right to issue the notice of ejectment. Upon these findings, in the main, the suit was dismissed with costs. The respondents appealed and the Addi tional Civil Judge, Kanpur. allowed the appeal, reversed the decree of the trial court and decreed the suit for ejectment and arrears of rent etc. on the finding that by virtue of Section 109 of the Trans fer of Property Act there had come to exist a relationship of landlord and ten ant between the parties; that Bankey Be hari (plaintiff No. 2) is the Karta of the joint family descendants of Sunder Lal and, therefore, entitled to terminate the appellant's tenancy 'and sue for eject ment on behalf of the other co-owners constituting the joint family. On the question of arrears his finding was against the appellant; the finding being that the defendant had failed to establish that rent had been paid by him up to the end of August, 1963 and he was, therefore, found to be in arrears from 1st June. 1962.

(3.) IT was further urged that the court below was in error in holding that Jwala Prasad and Bankey Behari respon dents could maintain the suit for eject ment and recovery of rent against the appellant. On hearing learned counsel I have not a moment's hesitation in hold ing that the decision of the lower appel late court was contrary to law on a num ber of points and, therefore, liable to be interfered with by this Court under Section 100 of the Code of Civil Procedure. In para 1 of the plaint it was asserted that plaintiffs 1 and 2 are the owners of the accommodation in dispute. There was no averment in the plaint to the effect that all the owners and descendants of Sunder Lal including Bankey Behari form joint Hindu family that Bankey Be hari is the Manager and Karta of that joint family. Indeed, if any such aver ment had been made in the plaint then it would have been inconsistent with para 1 of the plaint under which plaintiffs 1 and 2 asserted exclusive right of ownership to the disputed Hata. The trial Court found that there was no proof of relationship of landlord and tenant between the par ties, it never having been suggested for Bankey Behari either in the plaint or in evidence that the accommodation was let out by him to the appellant. This parti cular finding was affirmed by the lower appellate -:ourt, but it seems to have drawn on. the provision contained in Sec tion 109 of the Transfer of Property Act solely for coming to a contrary conclu sion to the effect that the relationship of landlord and tenant had come to "xist between the parties by virtue of Section 109 of the Transfer of Property Act In this the lower appellate court committed a gross' error. It is not disputed that the defendant is a tenant of the disputed ac commodation since the time of Mangal Ram. The sale deed (Ext. 2) dated 26-7-1959 shows that the premises were trans ferred by Mangal Ram in favour of Jwala Prasad and Sunder Lal, father of Bankey Behari. It is disclosed by the sale deed that Jwala Prasad and Sunder Lal were brothers, being the sons of Ram Bilas. They appear to have jointly purchased this property from Mangal Ram in 1959. The benefit of Section 109 of the Trans fer of Property Act. therefore, could be claimed only by Jwala Prasad and Sun der Lal deceased as under Section 109 the rights of the lessor devolve, in the absence of a contract to the contrary, on the transferee of the lessor. Bankey Be hari could not claim to have become landlord of the appellant under Section 109 as he was not the transferee of the former lessor Mangal Ram and it is here that the lower appellate court appears to have erred. Jwala Prasad could claim to be treated as a lessor under Section 109 but not Bankey Behari. Therefore, the finding of the lower appellate court that the relationship of landlord and ten ant had come to be established between Jwala Prasad and Bankey Behari on the one hand and Mahboob Ullah on the other is erroneous. This finding of the appeal court was vitiated also by a mis reading of the record. It wrongly stated that it 'IK not disputed that plaintiff No. 2 is owner of the premises after tile death of his father. Never in pleadings or evidence did the respondents admit that Bankey Behari was owner of the pre mises after the death of Sunder Lal. In the written statement it was categorically denied that plaintiffs 1 and 2 were owners of the property and plaintiffs were put to proof. It was also pleaded that without a succession certificate plaintiff No. 2 could not claim a decree. It transferred from the deposition of Ram Shanker (P.W. 3) that Sunder Lal died about three years ago leaving behind three sous: Bankey Behari (plaintiff No. 2), Bipin Be hari and Vijai Behari and seme daughters also. Sunder Lal, upon this evidence, patently died after coming into force of the Hindu Succession Act, 1956 and, therefore, his half share in the disputed premises acquired under the sale deed of 1959 will devolve upon his three sons of daughters in accordance with the provi sions of the Hindu Succession Ace if he had not during his lifetime made a dis posal of his half share in this property by partition, gift or testament. The plain tiffs appear to have calculatedly refrain ed from making Bipin Behari and Vijai Behari parties to this suit as they were the best persons to throw light on the question who has become owner of the share of Sunder Lal after his death, The plaintiffs tried to obtain a decree for ejectment against the appellant for tneir own exclusive benefit by a clever device of describing Bankey Behari in the title of the plaint as Karta of the family, a matter to which I shall advert separately. The plaint is cleverly silent on the ques tion how Jwala Prasad and Bankey Be hari are the sole'owners of the disputed Hata. It is not suggested that Bankey Be hari became owner of the half share of Sunder Lal, his deceased father by sale, gift, partition or bequest. In the above circumstances thsre appears to be no escape from the conclusion that Bankey Behari, plaintiff No. 2. was not the owner of the share purchased by Sunder Lal but he could at best be one of the co- sharers in that share of which possibly his other two brothers and sisters are also owners by succession. It is, there fore, clear that at best Jwala Prasad and Bankey Behari are only co-owners of the disputed premises along with some other persons who have not joined the suit either as plaintiffs or defendants, A peru sal of the notice of ejectment dated 5-4-1963 shows that it was issued on the in structions of Jwala Prasad and Bankey Behari only and not upon the instructions of all the heirs and successors of Sunder Lal. Upon my finding that there was no proof of relationship of landlord and tenant between the two plaintiffs and the appellant they alone were incompetent in law to put an end to the .appsllant's tenancy without the concurrence of the other co-owners of the accommodation. The notice of ejectment was, therefore, invalid in law as rightly urged by learn-led counsel for the appellant.