KHARBAR Vs. ABDUL RAOOF

JUDGEMENT

(1.) This appeal arises out of a suit for arrears of rent for the years 1325,1326 and 1327 Faslis.

(2.) The plaintiffs claimed as mortgagees of a certain ex-proprietary holding. They sued two persons, the appellant Kharbar and one Baldeo on the allegation that they were the plaintiffs tenants. Kbarbar pleaded that he had ceased to be a tenant, that he was ejected by Baldeo several years before the institution of the suit; and that Baldeo alone was in possession. Baldeo pleaded that he was not a tenant of the plaintiffs and that he had purchased the lands from the original tenants. He denied that the plaintiffs were mortgagees. He asserted his own possession and denied that Kharbar was in possession.

(3.) The learned Judge of the lower appellate Court found the following facts: He found that Baldeo purchased the holding from the original mortgagors; that Baldeo obtained possession in 1323 Fasli and has been in possession since; that Kharbar is not in possession; and that Baldeo is not the plaintiffs tenant. The learned Judge made a casual remark that Kharbar was in collusion with Baldeo. There was no allegation on either side to that effect, nor does there appear any evidence on the point. At another place the learned Judge opined that the possession of Baldeo was that of a sub-tenant of Kharbar. This is an opinion on a point of law and I do not accept it as a finding of fact. The learned Judge agreed with the first Court as to the liability of Kharbar for rent on the ground that Kharbar not having served a notice of surrender he continued to be liable to pay rent.