MOHAMMAD HASAN Vs. BACHAI RAM

JUDGEMENT

(1.) This is a suit instituted by the respondent for ejectment of the appellants from a building which had been leased by the respondent's predecessor to the predecessor of the appellants. The lease was executed on 15-10-1940 and was to continue for a period of ten years, the rent reserved being Rs. 35/- per annum for the first three years and Rs. 30/- per annum for the remaining seven years. On 13-8-1950 the plaintiff gave a notice calling upon the defendants-appellants to vacate the house but the defendants-appellants did not do so. On 30-10-1950 the plaintiff again sent a registered notice asking the defendants to pay up the arrears of rent from January 1950 and to vacate the house since the lease had determined but this also led to no result. The period of time allowed for vacating the house was up to 15-5-1951. On 4-5-1951 the plaintiff-respondent again gave a notice to the appellants to pay the arrears within one week and to vacate the house. The appellants failed to pay the arrears and also failed to vacate the house.

(2.) The suit, out of which this appeal arises, was instituted on 29-5-1951 for arrears of rent as well as for the eviction of the defendants-appellants. The defendants pleaded that they had already paid the rent in advance inasmuch as they had lent to the plaintiff a sum of Rs. 50/- which was to be adjusted towards the rent. The trial Court rejected this defence out held that the plaintiff was not entitled to evict the defendants inasmuch as there was no wilful default within the meaning of Section 3 of Act 3 of 1947. The plaintiff appealed to the Court of the District Judge of Partapgarh and the defendants filed cross-objections objecting to the finding that the rent was due from the appellants. The learned Additional civil Judge of Partapgarh who disposed of the appeal and the cross-objections held that the appellants were liable to be evicted from the house inasmuch as they had not paid the arrears of rent within one month of the demand having been made. He accordingly allowed the appeal and directed the eviction of the appellants. He dismissed the cross-objections and held that the decree for Rs. 30/-, arrears of rent, must be maintained. The defendants have come up in second appeal to this Court.

(3.) It has been contended before me on the one hand that accepting the finding of the Courts below that the rent for the year 1950 had not been paid, the rent became due on 31-12-1950 since that was the last date on which the lease expired. On the other hand it has been contended for the respondent that the lease expired on 15-10-1950, that date being the termination of the period of ten years from 15-10-1940. It was, therefore, urged that the demand made by the plaintiff by his notice dated 30-10-1950 was a valid demand since the rent for the year terminating on 15-10-1950 was due. The failure of the defendants to pay this arrear within a month entitled the plaintiff to claim eviction of the defendants from the premises. It was further contended by the learned counsel for the plaintiff-respondent that no notice under Section 106, Transfer of Property Act, was necessary in this case because the period of time fixed for the lease had determined and the defendants were not persons who could be said to be persons holding over within the meaning of Section 116 of the Transfer of Property Act.