BITTAN DEVI Vs. ABDUL MAJID AND

JUDGEMENT

(1.) THIS is a plaintiff's second appeal in a suit for ejectment and recovery of arrears of rent in respect of a house. The U.P. Temporary Control of Rent and Eviction Act, 1947 did not apply to the accommodation. The defendants plea was that the plaintiff was not the owner of the house, on the ground that the plaintiff had gifted the house in favour of Smt. Punni Devi and the subsequent cancellation of the gift by a registered deed was of no effect. The trial court held that in the case of a gift alleged to be void on any such ground as fraud etc., it could be cancelled only by a decree by the court and in the result held that the relationship of landlord and tenant did not subsist between the parties, and dismissed the suit. The lower appellate court has affirmed the aforesaid finding of the trial court and maintained the dismissal of the suit. When this appeal was heard last, an application made by the plaintiff for admission of a certified copy of the decree in Suit No. 33 of 1969 of the court of Civil Judge, Allahabad, between Smt. Bittan Devi, plaintiff, and Smt. Punni Devi and others, defendants, was allowed by me by an order dated April 13, 1978 and the certified copy of that document has been admitted as evidence in the case. It is a decree which is based on a compromise between the parties. The compromise decree declares that the deed of gift executed on 28th May, 1965 was null and void and of no legal effect. The result is that the gift deed does not exist in law and the plaintiff continued to be the owner and landlord of the house. Learned counsel for the respondents contended that the two courts below had concurrently found that the plaintiff was not the landlord of the house and in face of this finding the suit cannot now be decreed because if at all the plaintiff must be deemed to have again become the landlord with effect from the date of the compromise decree in suit no. 33 of 1969, which might give rise to a fresh cause of action. Learned counsel for the respondents does not, however, appear to be correct. It is not a case of retransfer of the property back to the plaintiff. It is a case where the gift under which Smt. Punni Devi was claimed to be the landlord by the defendants, became non-existent on having been declared to be null and void ab initio. Under the circumstances this appeal must succeed and is allowed. The plaintiff's suit for ejectment and arrears of rent, damages and other amount, amounting to Rs. 38/- upto the date of suit was also pendentelite and future damages at the rate of Rs. 19/- per month in respect of the house in suit specified in the plaint, is hereby decreed. The parties shall, however, in the circumstances of the case bear their own costs throughout.