MAKSUDANDAS NARAINDAS Vs. MADANLAL PHOOLCHAND

JUDGEMENT

(1.) THE respondents instituted a suit against the appellant for ejectment and arrears of rent. It was alleged in the plaint that Maksudandas was a tenant of the plaintiffs from before 1944; that there was no lease deed but the tenant had been paying Rs. 15 per month. On December 31, 1950, the defendant paid Rs. 485 but did not pay anything thereafter, not even on plaintiffs' notice dated September 20, 1953. The suit was instituted on November 15, 1954, claiming arrears of rent for 36 months, presumably because for the period prior to that the same had become time -barred.

(2.) THE defendant denied the plaintiffs' title, denied that he was a tenant, denied that he was liable to pay Rs. 15 per month as rent and asserted that no cause of action had accrued to the plaintiffs. The trial Judge held that the plaintiffs were owners of the suit house and that the defendant was their tenant. But he held that the plaintiffs failed to prove any rate of rent which the defendant was bound to pay to them and dismissed the suit in respect of rent. However, he passed a decree for eviction on the ground that the defendant did not pay any rent to the plaintiffs in spite of notice. Aggrieved by that decree both the parties filed cross -appeals. The learned Additional District Judge has dismissed both the appeals and has maintained the decree passed by the trial Judge. Aggrieved by the same the defendant has come to this Court in second appeal and the plaintiffs have filed cross -objections, claiming the same reliefs respectively as they did in the first appellate Court.

(3.) 1952 SCR 269, urges that payment of rent is prima facie evidence of tenancy. On a careful consideration of the arguments placed before me by both sides I must hold that the judgment of the first appellate Court is not according to law. As a first appellate Court, it could not possibly afford to ignore any material fact on the record. Here, the defendant denied the plaintiffs' title in the written statement, he did not assert his own title, nor title in any one else, nor did he assert the nature of his own possession, nor did he plead adverse possession. His son admitted the plaintiffs' title. The plaintiffs produced the sale deed Ex. P. 1. The defendant's son did not produce that counterfoil of the receipt Ex. P. 2 which he obtained at the time of making the payment of Rs. 485. The receipt does not denote any payment by the defendant himself, but the payment was made by his son. The receipt does not state the period for which nor the rate at which the rent was paid. The plaintiffs produced Gulabchand P.W. 4 and Phoolchand P.W. 2 to prove that Maksudandas was let into the house as a tenant by the plaintiffs themselves. All these facts ought to have been taken into consideration by the first appellate Court, but it does not appear from its judgment that this was done. In these circumstances the finding recorded by it must be set aside.