AMBIKA PRASAD AND ANR. Vs. HARIHAR PRASAD

JUDGEMENT

(1.) The second appeal is directed against the judgment and decree passed by the Court of VII Additional District Judge, Lucknow, allowing the defendant's appeal and dismissing the plaintiffs' suit and thereby reversing the order passed by the Court of Munsif South Lucknow, decreeing the plaintiffs' suit for arrears of rent and ejectment. The plaintiff's filed a suit for arrears of rent and ejectment against the defendant alleging that the defendant was tenant of the plaintiffs at the rate of Rs. 10/ - per month and that the amount of arrears of rent was due against him which he has not paid despite service of notice on him and has not vacated the premises in question. The disputed premises are house No. 581/152 situate in Mohalla Bhindiya Tola, Maha Nagar Lucknow the boundary of which given in the plaint is as follows:

(2.) The suit was filed in the Court of Judge, Small Causes as under the Civil Laws Amendment Act suit between the landlord and tenant became cognizable by the Court of Judge Small Causes. The defendant filed written statement and alleged that he was owner and in possession of the house in dispute (emphasis supplied) as such the suit was liable to be dismissed. The defendant further pleaded that the Court has no jurisdiction to try the suit as the dispute is for ownership, and that the plaintiffs should have filed suit for declaration and instead of that they have filed a suit for arrears of rent and ejectment which is liable to be dismissed. On this objection the plaintiffs applied for the return of the plaint. The plaint and the written statement both were returned to the plaintiffs who thereafter filed the same in the Court of Munsif in which Court the trial of the suit proceeded. Both the parties tendered evidence. Although no plea on the basis of will was taken by the defendant nor did he amend the written statement or moved an application for filing fresh written statement. Regarding Will, the basis of his title statement under Order 10 Rule 2 C.P.C. the same was unregistered and was on a plain piece of paper said to have been executed by Murlidhar on 15 -3 -1971 i.e., after the execution of the sale -deed bequeathing house No. 531/152 in favour of the defendant. The boundary of the said house as given in the said will is as follows: - -

(3.) On the pleadings of parties the trial Court that is the Court of Munsif where the plaint was presented again after taking back from the Court of Judge Small Causes, following issues were framed: