FATEH CHAND Vs. BRIJ BHUSHAN PRAKASH

JUDGEMENT

(1.) These two appeals are connected with each other and the undisputed facts which have given rise to them are as follows:-On the 21st August 1923, Lala Fateh Chand and Lala Chatter Sen (appellants in Appeal No. 2041 of 1948 and respondents in Appeal No. 2250 of 1946, who shall be referred to hereinafter as defendants) obtained a lease of the premises in dispute from one Lala Devi Prasad. The landlord served a notice of eviction on the tenants and filed a suit for ejectment and recovery of arrears of rent. The defendants pleaded inter alia that a part of the property from which their ejectment was claimed belonged to them and not to the plaintiff. They also pleaded that the notice of eviction was invalid. This latter contention was accepted by the Court and the suit for ejectment was dismissed. Lala Devi Prasad, the ori-ginal landlord, then died sometime after 1942 leaving his widow, Srimati Asharfi Devi and two sons Brij Bhushan Prakash and Kirti Bhushan Prakash. Under the Hindu Women's Rights to Property Act (Act XV1I1 of 1937), the widow on the death of her husband obtained a share in the leased property equal to that of her sons. The two sons then served a fresh notice of ejectment on the defendants on the 24th of March 1944. The Defence oi India Rules were in force at that time and an order had been issued under R. 81 of those Rules that no person could be ejected without the permission of the Dis-trict Magistrate. On tile 7th of April 1944, the two sons of Lala Devi Prasad obtained the permission of the District Magistrate to eject the defendants. They along with their mother then filed a suit for ejectment and arrears of rent against the defendants on the 12th of April 1945. The defendants contested the suit and the first of the two main pleas which they raised was that the notice of ejectment was invalid as after the death of the original landlord, Lala Devi Prasad, his widow and the two sons had all become landlords, but the notice had been served only on behalf of the two sons and not on behalf of the widow. Two only of the three landlords could not effectively determine the tenancy. Their other plea was the same which, they had taken in the earlier suit, viz., that Part of the premises belonged to them and not to the plaintiffs. The Additional Munsif of Muzaffarnagar, who tried the suit, accepted the contention that the notice of ejectment was invalid, but found no force in the plea that plaintiffs were not the owners of the entire premises in suit. He, however, took the view that as the landlord's title had been denied in the previous suit without justification, the tenancy stood forfeited and the defendants could be ejected without any notice. He, therefore, decreed the suit for possession as well as arrears of rent. The defendants went up in appeal and the learned Civil Judge upheld the decree though on a different ground. He agreed with the trial Court that the tenancy had stood forfeited on account of the denial of the landlord's title in respect of a part of the leased property, but he held further that the notice of ejectment served by the two sons was also a valid one and effectively determined the tenancy evert if there had been non-forfeiture. Against this decree the defendants have filed Second Appeal No. 2250 of 1948.

(2.) After getting the decree from the appellate Court the plaintiffs put it into execution. The execution application was filed on the 8th of August 1946. The defendants filed aft objection under Section 47 of the Code of Civil Procedure on the 26th July 1947, in which they contended that the decree for ejectment was not executable in view of Section 14 of the U. P. Temporary Control of Rent and Eviction Act as none of the grounds mentioned in Section 3 of the Act had come into existence. This objection was met on behalf of the plaintiffs on the ground that at least two of the grounds mentioned in Section 3 of Act III of 1947 were present The tenants had denied the title of the landlord at least twice and the permission of the District Magistrate had also been obtained before filing of the suit. The Munsif who was executing the decree rejected the objections of the defendants as without force. They went up in appeal to the Civil Judge who upheld their objection and held that they were not liable to be ejected. So far as the denial of the landlord's title was concerned be took the view that the Second Appeal against the decree for ejectment being pending, the decree had not by then become final and nobody could know in what manner this Court would interpret the rent note. It could not, therefore, be said that there had actually been a forfeiture of the tenancy. About the permission of the District Magistrate, he was of opinion that the permission had been granted when the U. P. Temporary Control of Rent and Eviction Act, 1947, had not been enacted and could not, therefore, be considered to be a permission contemplated by the Act. Against the order allowing the defendants' objection, the plaintiffs-decree-holders have filed Execution Second Appeal No. 2041 of 1948.

(3.) Only one point is pressed in regular Second Appeal No. 2250 of 1946. It is contended that the suit for ejectment was bound to fail and could not have been decreed because the notice terminating the agency was invalid. After the death of Lala Devi Prasad, the original landlord three persons, i.e., his two sons, Sri Brij Bhushan Prakash and Sri Kirti Bhu-shan Prakash and bis widow Srimati Asharfi Devi, became the landlords of the premises. The widow got a share equal to that of the sons under the Hindu Women's Right to Property Act and she could claim a partition of her one third share. Her sons could not therefore, represent her. If there were three landlords it was not open to two of them only to terminate the tenancy. The notice to quit in the present case was issued only by the two sons of Lala Devi Prasad. His widow did not join it. The notice was, therefore, invalid and ineffective.