PYARELALSA Vs. GARANCHANDSA

JUDGEMENT

(1.) THIS second appeal arises from a suit for ejectment of the tenant and for recovery of arrears of rent. The trial Judge passed a decree for ejectment and also for Rs. 82. 50 np. on account of arrears of rent and mesne profits at the rate of Rs. 2. 50 np. pendente lite and future. The tenant appealed from this decree but the appeal was dismissed. He has now come up to this Court in second appeal.

(2.) FOR the purposes of the limited question which I am called upon to answer, the facts are these. Pyarchandesa, Hiralalsa and Anokchandsa were three brothers. They were members of the joint Hindu family to which the suit property belonged. Pyarchandsa had three sons, Garanchandsa, Keshrichandsa and Babulal. Garanchandsa is plaintiff 1, Kabulibai widow of Babulal, is plaintiff 2 and Jainmati bai, widow of Keshrichandsa, is plaintiff 3. There was a partition of the joint Hindu family in Samvat year 2011-12 (that is 1954-55 ). In this partition, the suit property was allotted to the three plaintiffs. Notice of ejectment, prior to the institution of the suit, was also given by these three plaintiffs. Defendant pyarelalsa was the tenant of the joint Hindu Family which was carrying on business in the name and style of "champalalsa Amarchandsa". The tenancy was created by virtue of a rent note dated November 9, 1941, (Ex. P-1 ). It was contended in the plaint that after the partition the defendant became the tenant of the plaintiffs alone. This position was contested by the tenant.

(3.) THE only point urged before me by Shri Verma, learned counsel for the defendant-appellant, is that there was no relationship of landlord and tenant between the plaintiffs and the defendant, and the other members of the joint family were also his landlords so that the plaintiffs, without the other members joining them, were not entitled to determine the defendant's tenancy. Further, section 109 of the Transfer of Property Act does not come into play inasmuch as a partition is not a transfer of the property. Shri Dabir, learned counsel for the respondents, objects to that question being raised in this Court when it was not raised in the first appellate Court. Since it is a question of law, I have allowed it to be raised.