ZAKIR Vs. MOHAMMAD HUSSAIN KHAN

JUDGEMENT

(1.) THIS appeal by plaintiff arises out of a suit filed for ejectment of the defendants from the premises in question and for recovery of arrears of rent and damages. The plaintiff claimed himself to be the landlord of the house and alleged that the defendants 1, 2 and 3 were his tenants therein at the rate of Rs. 5/- per month. The plaintiff filed an application for permission to file a suit of eviction of the defendants. That application was opposed by the defendants 1, 2 and 3 was allowed on 20-7-1968. A revision filed against that order was dismissed by the Additional Commissioner, Lucknow. The plaintiff, after obtaining the requisite permission, sent a notice to defendants 1 to 3 determining their tenancy. That notice was despatched by post under registered cover on 30-7-1968 which, according to the plaintiff, was refused by the said defendants and was, therefore, returned to the plaintiff as refused. The plaintiff, thereafter gave another notice dated 27-8-68 to the defendants 1 to 3 which was served on the defendants but the defendants failed to vacate the said house hence the suit for ejectment of the defendants. The suit was resisted by the defendants 1, 2 and 3 who, in their written statement, pleaded inter alia that they had taken the said premises on rent from Subhani about 30 years ago and had been paying rent to him and after his death they had been paying rent to his widow. They also pleaded that they had not received any notice from the plaintiff. The validity of the notice was also challenged. The plaintiff amended his plaint and impleaded the heirs of Subhani as well as defendants No. 4 to 7.

(2.) THE trial court held that plaintiff was the owner of the house in dispute, that the rate of rent was Rs. 4/- per month and that the plaintiff had failed to establish that the alleged notices were Served on the tenants-defendants. THE relief for ejectment was, therefore, refused but a decree for arrears of rent upto 30-9-1968, at the rate of Rs. 4.00 per month, was passed. THE defendants Zakir and Yousuf filed an appeal from the said decree. THE plaintiff filed a cross-objection. It was noticed by the appellate court below that the learned Munsif had not recorded his finding on issue No. 10 which was in the following terms: "Whether there exited relationship of landlord and tenant between the parties?" THE appellate court below, therefore, by its judgment and order D/- 20-7-74 remanded the case to the trial court for a fresh trial according to law. On remand the trial court accordingly decided the case afresh. It dismissed the suit for ejectment but decreed the suit for arrears of rent from 1-5-58 to 31-10-1968. On issue No. 10 it recorded a finding that there did exist relationship of landlord and tenant between the parties to the suit, From that decree an appeal was filed by the defendants. A Cross-objection was preferred by the plaintiff. THE undermentioned four points were urged and pressed before the appellate court below:- 1. Whether the relationship of landlord and tenant exists between the parties? 2. Whether the permission granted by the Control of Rent and Eviction Officer under S. 3 of the U. P. Control of Rent and Eviction Act 1947 was validly granted?

(3.) IN support of his first contention the learned counsel for the appellants refer- red me to the finding recorded by the trial, court on issue No. 7. The learned Munsif in his judgment dated 14-2-1975 had observed as follows:- "There is no endorsement of refusal by the Postal and Telegraph Department so I that a presumption of service could be drawn in favour of the plaintiff as against the defendants. Rather on the other side, the endorsement on these notices runs to the effect that the addressees are out of station and 'not met'. Even if the plaintiff claims endorsement of refusal, he should and ought to have proved by proper evidence, in a case like this where the plaintiff has not proved with consistent evidence that actually the notices were sent and dropped to reach to the defendants." The appellate court below, however, had observed as follows:- "On notice Ex 10 which was addressed to 'Shakir, the endorsement is 'Refused'. Earlier on 31-7-1968 and 1-8-1968 the endorsement of the postal authorities was that the addressee had not met. On notice Ex. 12 addressed to Yusuf the endorsement dated 2-8-1968 is 'refused' whereas on 31-7-1968 and 1-8-1968 the endorsement is that the addressee had not met. On notice Ex. 11 addressed to Zakir the endorsement from 31st July 1968 to 6-8-1968 is that the addressee had not met and 'had gone out and his outstation addressis not known. The counsel for the appellants had thus wrongly noted on notices Exs. 10 and 12 'No endorsement of refusal'. This fact is also wrongly mentioned in the lower Court's finding."