BHAGWATI PRASAD Vs. EPEGLAR

JUDGEMENT

(1.) THIS is a second appeal by the plaintiffs Bhagwati Prasad and others against a decree of the lower appellate Court awarding arrears of rent against defendant 2 and not against defendant 1 and refusing possession by ejectment. The facts are that defendant 1 took two plots from the plaintiff on lease on a ground rent of Rs. 48 and Rs. 2 respectively and built a house on those plots. In 1919, defendant 1 sold the house to defendant 2, and it has been found as a fact by the lower appellate Court that there was an agreement between the defendant and Bhagwati Prasad plaintiff lambardar that defendant 2 would alone be responsible for the rent in future, and that defendant 1 would no longer be responsible for the rent. It was argued that this finding was only in regard to the Rs. 48 rent, but clearly the finding is in regard to the whole ground rent, i, e.. Rs. 50 for both plots. I am bound by that finding of fact. It is found that defendant 2 did not pay the rent and a decree for Rs. 181-8 arrears has been passed against him. In second appeal it was urged that both the defendants were responsible for the rent but as already pointed out the finding of the lower appellate Court is binding on that point. It was further urged that the decree should have been for ejectment. Now under Section 1ll, T.P. Act a lease of immovable property determines under Sub-section (g) by forfeiture where there is a breach of a condition for which it is provided that the lessor may re-enter. Such a provision exists in the two leases. But it is not stated in the section that the grant of the remedy of ejectment is not a matter of the discretion of the Court. It is open to the Court to order the remedy of a decree for arrears which has been granted by the lower appellate Court. The reasons why ejectment has not been decreed are as follows: Defendant 2 did not pay the purchase price of Rs. 12,000 to defendant 1, and defendant 1 obtained a decree against defendant 2 and is endeavouring to gain satisfaction by the sale of the house in execution. It is found as a fact by the lower appellate Court that the present proceedings are collusive on the part of the lambardar. He is endeavouring to obtain possession of this house worth Rs. 12,000 on a decree for arrears amounting to less than Rs. 200. Those arrears are not due from defendant 1 but from defendant 2. It is found that the proceedings are collusive with defendant 2, as if the present appellants obtained possession of the house, defendant 1 would be prevented from selling the house in execution sale. I see no reason to differ from the finding on that point, and it appears to me that it would, be extremely inequitable to grant a decree for possession by ejectment in the present case.

(2.) ACCORDINGLY the appeal is dismissed. As no one appears on the other side, no costs are granted.