RAMNARAIN Vs. KISHORELAL

JUDGEMENT

(1.) THIS is a civil regular second appeal by the defendants in a suit for rent and ejectment. The suit for rent has been dismissed by both Courts below and there is no dispute-about that at the present stage, and the only question in controversy in the present appeal is About ejectment for which relief the suit has been decreed.

(2.) THE material facts leading up to this appeal may shortly be stated as follows. Nathmal and Dhanraj, father and son, obtained on rent the suit shop, which has been fully described in paragraph one of the plaint, from Purshottam Das and murlidhar by a rent-note dated Maha Vadi 9 Smt. 1999 (corresponding to some time in 1942) Ex. P-I, by which the former agreed to pay rent at-the rate of Rs. 24/- per mensem to the latter. One of the terras in the rent-note was that the tenants would be willing to give vacant possession of the said shop whenever the landlords should demand possession of it. It appears that the tenants did not pay any rent to the landlords for a period of six years preceding the institution of this suit and consequently it is alleged in the plaint that they gave a notice to the former to pay the rent in arrears as also to quit, and in support of this allegation the relevant postal receipt-was produced. Another grievance of the plaintiffs landlords-was that the defendants tenants had disclaimed the title of the landlords and arrogated the same to themselves. It is in these circumstances that the present suit was instituted on the 16th November, 1950, in the Court of the Munsiff Didwana in which the arrears of rent as well as ejectment were claimed, and a further claim of Rs. 10/-per mensem as damages was made from the date of the salt until delivery of possession. Nathmal seems to have died soon after the institution of the suit, and his other son Naraindas was brought on the record in his place; Dhanraj one of the executants of the rent-note being also his son was already on the record. Both defendants resisted-the suit. They denied the tenancy and the rent- note on which it was founded. They also raised the plea that the notice was invalid.

(3.) THE trial Court decreed the suit both for rent and ejectment. The defendants went up in appeal but failed. Thereafter they came in second appeal to this Court. At that stage it appears Co have been discovered that the plaintiff Murlidhar had died some time in December, 1950, when the suit was pending in the trial Court and that his legal representatives had not been brought on the record. In that connection it was further discovered that an application had been made on behalf of Kishorelal plaintiff that he and the deceased Murlidhar constituted a Joint Hindu family and that after the death of the said Murlidhar, Kishorelal was the Karta of the family. But somehow this application was not pursued and the trial Court did not take any action on it. It was thus submitted before this Court in second appeal that the plaintiff Murlidhar having died in December, 1950, and his legal representatives haying not been brought on the record in his place, the whole suit had abated and should be dismissed. It was also urged that an issue as to the validity of the notice had not been framed in the trial Court although the parties were in disagreement on that point. In these circumstances, a learned Single Judge before whom the appeal came for disposal allowed it and remanded the case to the trial Court With a direction that an opportunity be given to the plaintiff Kishorelal to prove the allegations made in his application dated the 28th April, 1952, and to decide whether the right to sue survived to him alone so that he was in a position to continue the suit without bringing the legal representatives of the deceased Murlidhar on the record. Furthermore, the trial Court was also asked to frame an issue as to whether a valid notice either of forfeiture or terminating the tenancy was served on the defendants and to decide that issue also. The parties were allowed to adduce evidence on the points remitted to the trial Court.