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.5.00 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 but 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 -1968 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 un-pleaded the heirs of Subhani as well as defendants Nos. 4 to 7.

(2.) THE trial court held that the plaintiff was the owner of the house in dispute, that the rate of rent was Rs. 4.00 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 up to 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 is 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 existed relationship of landlord and tenant between the parties ?" THE appellate court below, therefore, by its judgment and order dated 20-7- 1974 remanded the case to the trial court for a fresh trial according to ilaw. 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 1-5-1958 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 Sec. 3 of the U. P. Control of Rent and Eviction Act 1947 was validly granted ? 3.Whether the notice of eviction under Section 106 of the Transfer of Property Act was a valid notice ? 4.Whether the respondents should be granted damages for use and occupation during the pendency of the suit and subsequent to it ?

(3.) IN support of his first contention the learned counsel for the appellants referred 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 :