NANNE KHAN Vs. HAM DASS

JUDGEMENT

(1.) This second appeal arises out of judgment and decree dated 1.9.87 passed by the Additional District Judge Karauli dismissing the appeal of Nanne Khan and Kamruddin filed by them against the judgment and decree dated 9.8.79 passed by the Munsiff & Judicial Magistrate, Karauli ordering their eviction. Plaintiff/respondent Ram Dass filed a suit for rent and ejectment against Nanne Khan and Kamruddin with the allegations that he was owner of the premises situated in the city of Karauli which had been let out to the defendants. Defendants have failed to make payment of due rent and that they were causing nuisance in the tenanted premises. Defendants filed a joint written statement and denied the allegations contained in the plaint. They stated that they have not committed any default in payment of rent. Premises has been let out for residential purposes and they were not guilty of committing nuisance. Trial Court framed issues on the questions of denial of title and the rate of rent. On the basis of evidence led by the parties, the Trial Court held that agreed rent was at the rate of Rs. 8/- per month in the first year of tenancy and thereafter it was Rs. 12 per month. Trial Court also held that suit premises had been taken on rent for the purpose of a shop but it was being used for residential purposes and in this manner credit of the shop has been adversely affected. Trial Court held that termination of tenancy was valid. It also held that tenant had denied the title of the landlord and, therefore, he had forfeited his right to continue as tenant. On that basis the Trial Court passed a decree against the appellant Nanne Khan and Kamruddin.

(2.) Defendants filed appeal against the judgment and decree of the trial court. The same was dismissed by the appellate court on 16.2.84. Second appeal was filed by Nanne Khan against the judgment & decree of the appellate court. During the pendency of second appeal No. 84/84 Nanne Khan v. Ram Dass, an application was filed by the plaintiff-respondent under order 22 Rule 9 and Rule 10A read with Section 151-A C.P.C. In the said application he stated that Kamruddin had died on 16.1.80 during the pendency of appeal before the Additional District Judge but his legal representatives had not been brought on record. This Court set aside the judgment of the appellate Court and remanded the case to the first appellate court for deciding legal aspect of the death of Kamruddin. After remand by this Court, the trial court again considered the case and held that since legal representatives of Kamruddin had not been brought on record despite his death during the pendency of appeal, the appeal will be treated as having been abated. On that basis the appellate court has decided the case and declared the appeal of Nanne Khan and Kamruddin as abated.

(3.) Learned Appellate Court has examined the question of abatement on the basis of the following direction given by this Court: