CHAMELI DEVI Vs. JYOTISH CHANDRA SRIVASTAVA AND OTHERS

JUDGEMENT

(1.) This is a Second Appeal by Smt. Chameli Devi decree holder, against the order of the Civil Judge of Allahabad allowing the appeal of Jyotish Chandra Srivastava, respondent No. 1, and thereby dismissing the execution application.

(2.) The house in suit belonged to Brij Bahadur Lal, father of Shambhunath, respondent No. 2, and others, Brij Bahadur Lal executed a document of 26.6.1940 with regard of the house in favour of Behari Lal for a sum of Rs. 2,250/-. The document purports to be sale deed with a condition of repurchase by the vendor. As appears from the judgment of the lower appellate Court, the parties have regarded this as a mortgage by conditional sale. On the same date, Brij Bahadur Lal executed a 'Kabuliat' having obtained the house on lease. There is a stipulation in the 'Kabuliat' that the 'tenant' can sub-let the accommodation. It was on 8.4.1958 that Behari Lal's sons transferred their interest in the house in favour of Smt. Chameli Devi. On 25.5.1960 Smt. Chameli Devi served a notice on Jyotish Chandra Srivastava calling upon him to pay rent directly to her, but this notice was not acted upon by any one. Jyotish Chandra wanted Smt. Chameli Devi to have her title adjudicated upon by the courts of law as the rent was being demanded by Shambhu Nath son of Brij Bahadur Lal also.

(3.) After serving a combined notice under Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act and under Section 106 of the Transfer of Property Act on Shambhu Nath and others, Smt. Chameli Devi instituted the present suit against them (Shambhu Nath others) for the recovery of the arrears of rent and for ejectment. Jyotish Chandra Srivastava was not served with any notice nor was he impleaded in the suit. The suit was instituted in 1965. On 8.4.1965 Shambhu Nath and others transferred their interest in favour of Smt. Chameli Devi on receipt of an additional consideration of Rs. 7,000/-. Thereafter, they did not contest the suit and in fact, filed a compromise on the basis of which the suit was decreed both for ejectment and the arrears of rent. In the compromise deed it was mentioned that Jyotish Chandra Srivastava had given his consent to vacate the accommodation. However, there was a clause that the Judgment Debtor shall render assistance in giving possession to her.