ADIT PRASAD Vs. CHHAGANLAL

JUDGEMENT

(1.) This appeal has been preferred by defendant No. 2 In a suit instituted by the plaintiffs for eviction of the defendants from the shop premises comprised in Holding No. 50, in Ward No. 11 of Gaya Municipality and for a declaration that the order dated 22-11-1958 passed by the House Controller fixing Rs. 15.50 as the fair rent for the said premises Is illegal and without jurisdiction.

(2.) The case put forward by the plaintiffs is as follows: Sometime in 1946, two rooms of the house in question were let out to the defendants on a monthly rental of Rs. 69/- and Rs. 52.50 respectively. Subsequently, the two rooms were amalgamated into one by breaking the intervening wall and a new tenancy in respect of the same was created with effect from the 20th September 1952 on a consolidated rent of Rs. 121.50 per month. The transaction was incorporated in a Kirayanama for a term of three years which was executed by the defendant No. 2 as the Karta of his joint family. On 29-10-1953. however, defendant No. 1, who is the brother of defendant No. 2, applied to the House Controller for fixation of fair rent for the premises and House Rent Control case No. 119 of 1953 was accordingly registered. Only a week thereafter, namely, on 5-11-1953, the plaintiffs also put in an application before the controller for eviction of the defendants and House Rent Control Case No. 120 of 1953 was accordingly registered. On 18-11-1954, the Controller allowed the plaintiffs' petition for eviction without fixing a fair rent. Thereupon defendant No. 2 preferred an appeal before the Collector, who by his order dated 31-3-1956 upheld the order of eviction, but remanded the case for fixation of fair rent. But the order of the Collector was set aside in revision by the Commissioner by his order dated the 9th November, 1956, holding that there could be no default in payment of rent as fair rent had not yet been fixed. Against the order of the Commissioner, the plaintiffs filed a writ petition before this court, but that was rejected on 25-8-1958 as not tenable. Ultimately, on 22-11-1958, the Controller fixed Rs. 15.50 as the fair rent for the premises with effect from 29-10-1953, which was the date of defendant No. 1's application. This order of the controller is under challenge in the present suit which was instituted in 1959. The plaintiffs sought eviction of the defendants on three grounds; (i) default in the payment of rent, (ii) expiry of the period for which the tenancy was created, and (iii) personal necessity

(3.) The defendants put forward various picas in defence. According to them, the Kirayanama mentioning Rs. 121.50 as the monthly rent had been taken from defendant No. 2 under undue influence and the consolidated rental agreed upon by the parties was Rs. 60/-. The allegations of the plaintiffs relating to default in the payment of rent and personal necessity were denied as false. The defendants further pleaded that the tenancy was from month to month, and not for a fixed term of three years, as alleged by the plaintiffs