PRATAP CHANDRA RAJ Vs. MADAN RAM

JUDGEMENT

(1.) THE plaintiff's father and defendant No. 2 were brothers. The disputed house admittedly belonged to them. It was let out to defendant No. 1. The plaintiff's ease is that defendant No. 1 was to pay rent at the rate of Rs. 10/-per month. Previously he was collecting rent through defendant No. 2 though the house was allotted to his share in a partition. But from 1-8-64 to 31-7-67 defendant No. 1 did not pay any rent. The suit is for recovery of Rs. 360/- for a period of 3 years. Defendant No. 1 contested the suit alleging that he does not know anything of the partition and all through he knew defendant No. 2 as the landlord to whom he was paying rent at first at the rate of Rs. 2/- per month and subsequently at the rate of Rs. 5/- per month. He was not in arrears. Defendant No. 2 supported the case of defendant No. 1, but did not appear in court to examine himself. The learned S. C. C. Judge dismissed the suit holding that there was no relationship of landlord and tenant between the plaintiff and defendant No. 1 as there was no attornment of defendant No. 1 to the plaintiff after the partition. He further held that defendant No. 1 had paid the entire amount to defendant No. 2.

(2.) THE plaintiff claims rent at the rate of Rs. 10/- per month. The onus is on him to prove that rate. Defendant No. 1 denies this rate. The plaintiff has no corroborating evidence. In the circumstances the defence story that the rent was at the rate of Rs. 5/- per month during the suit period must be accepted.

(3.) DEFENDANT No. 1 took the plea of payment to defendant No. 2. The onus of payment is on him. There is no corroborating evidence on his side. It must accordingly be held in view of the denial of the plaintiff that the plea of payment has not been proved.