MEHAR SINGH Vs. BALBIR SINGH

JUDGEMENT

(1.) The appellant in this case was the tenant against whom an order for eviction was obtained by the respondent-landlord on 19th August, 1966. The agreed rent payable by the appellant to the landlord was Rs. 150/- per month. After the respondent secured an order of eviction on 31st October, 1967, he attempted to execute the same in the year 1972. This was opposed by the appellant, mainly on the ground that there was a fresh tenancy created by the acceptance of rents by the respondent between 1967 and 1972 and, therefore, the order could not be executed. The Rent Controller agreed with the contention raised by the appellant and held that the eviction order was not executable and a fresh tenancy had been created. Feeling aggrieved, the respondent went up in appeal. The learned Additional District Judge reversed that finding. A second appeal has been brought to this Court by Mehar Singh, tenant.

(2.) In this Court, the learned counsel for the appellant, while repeating the same very contentions, urges that a fresh tenancy has been created between the landlord and the tenant by the acceptance of rents after passing of the order for eviction. It is contended that the landlord again leased out a part of the premises in question to the appellant at the rent of Rs. 175 per month and had subsequently withdrawn some portion of it and started charging Rs. 150/- per month for the same and the rent was regularly paid upto June, 1973. Consequently, upon the coming into being a fresh tenancy, the landlord was estopped from executing the decree. The alleged statement is purely a question of fact and having been found against the appellant, it is not open to raise the same in second appeal, Shri Kuldip Singh does not contend that the finding of the lower Appellant Court is not in accordance with the evidence in this case, but that is only a way of thinking that on the evidence, the finding should have been different. The finding is based on the parties evidence and it is clear that the lower Appellate Court has dis-believed the appellants evidence.

(3.) Shri Kuldip Singh, in the circumstances, contended mainly that apart from the question of fact, there is in this case a question of law and the question is whether the landlord's having accepted the rent from the appellant subsequent to the order of eviction, he should be deemed to have waived the right of eviction. I do not, however, think any question of waiver can arise in the circumstances of this case. The landlord indeed continued to receive rent at the rate of Rs. 150/- a month in respect of the premises which is in the appellants' possession, but I do not see how in the circumstances he should have refused to receive this amount. The tenancy stood terminated by the order of eviction and subsequent to that order, the appellant was merely in occupation of the premises and liable to pay for their use and occupation and if, therefore, he went on paying rent at the rate of Rs. 150/- per month, it is not surprising that the landlord continued to receive payment.