NIHAL CHAND Vs. SHIV NARAIN

JUDGEMENT

(1.) THIS is a second appeal by Nihal Chand plaintiff from the judgment and decree, dated 30-4-1953 of the First Additional District Judge of Delhi varying, in certain respect only, the decree, dated 26-11-1951, of the First Class Subordinate Judge of Delhi, whereby the suit of the plaintiff against Shiv Narain, Rama Nand and sadda Ram, defendants, sons of Giani Ram, Giano, defendant, widow of Giani ram, and one Phool Wati, was dismissed in so far as the plaintiff claimed a decree for eviction of the defendants from the premises in suit, but was decreed for an amount of Rs. 197/1/- as rent due. Special costs in the amount of Rs. 80/- were awarded against Shiv Narain, Ram nand and Giano defendants. In appeal, the first appellate Court only varied the decree of the trial Court in the matter of costs, leaving the parties to their own costs before it as also in the trial court.

(2.) THE premises were taken on lease by Giani Ram deceased from the plaintiff on 16-3-1941, at a rental of Rs. 5/- per mensem. It appears that the premises were under construction and on completion of the same on 25-7-1941, Giani Ram deceased went in possession of the same. Soon after there was litigation between them on the question of the rent of the premises, which was ultimately fixed by decree of the Court at Rs. 5/- per mensem. Between 1941 and 1946 there were six suits brought by the plaintiff against Giani Ram deceased either claiming increase of rent or eviction or both on one or more grounds such as are to be found in the Rent Acts that were in force at the time of the institution of the suits. It appears that in all the suits the plaintiff failed. These facts are taken from para no. 13 of the written statement of defendants Shiv Narain, Ram Nand, Sadda Ram and Giano respectively Nos. 1 to 3 and 5, and the same are not controverted. At the same time the pleadings in these suits and the judgments and decrees in these suits have not been produced by either party and are not available on the record. Giani Ram deceased died on 10-8-1949. His three sons, defendants Nos. 1 to 3, and his widow, defendant No. 5 remained in possession of the premises.

(3.) ON 16-2-1951 the plaintiff brought the suit, giving rise to this second appeal, claiming (a) arrears of rent in the amount of Rs. 200/-and (b) eviction of the defendants from the premises on the ground (i) of non-payment of rent (ii) of damaging the premises, and (iii) of having no right to remain in possession of the premises, because, according to the plaintiff, the tenancy came to end upon the death of Giani Ram deceased, leaving no rights that could devolve upon the sons and the widow of that deceased. In defence the contesting defendants, Nos. 1 to 3 and 5 took the pleas that there was no case of non-payment of rent or damaging the premises and that the tenancy in favour of Giani Ram devolved upon his sons, defendants Nos. 1 to 3 who are in occupation of the premises as tenants.