BADAL Vs. RAM BHAROSA

JUDGEMENT

(1.) This is a second appeal by the defendants in a suit for ejectment from a shop and for arrears of rent. The relevant facts are briefly as follows. By a qabuliat dated Kunwar Sudi 8 Sambat 1966 Bhunni, the predecessor.in-interest of the defendants appellants, took on lease shop No. 88 from Gokaran Bam, the predecessor-in-interest of the plaintiffs-respondents. The material terms of the qabuliat were (a) the period for which the shop was-taken was one year beginning from Miti Kunwar Sudi 10 Sambat 1966 = 24 October 1909, up to Miti Kunwar Sudi 10, Sambat 1967, which corresponded with 13 October 1910, (b) the rent was Rs. 10 a year, (c) the rent was to be paid month by month, (d) if the rent was not paid in any month, the lessor was given power to eject the lessee and to take possession of the shop and further to recover the rent of the whole year from the lessee and his representatives. On 1 August 1935, the representatives of the lessor brought the suit which has given rise to this appeal. They alleged in the plaint that a notice to quit had been given to the defendants ending with the month of the tenancy and1 that rent for the last three years before the suit was in arrears. The defendants pleaded in their written statement that their father Bhunni had not taken the shop in suit from the plaintiff's predecessor-in-interest, that it was not correct that the tenancy began from the 24 day of each month, that the notice to quit was contrary to law, that the defendants had constructed the shop in dispute anew at a considerable expense and that the plaintiffs were not entitled to get possession of the shop without reimbursing the defendants for the construction of the shop. They also pleaded that the suit was barred by Section 11, Civil P.C., inasmuch as the plaintiffs had in 1929 brought a suit against the defendants in respect of this very shop and that that suit had been dismissed.

(2.) The trial Court of the Munsif found that the defendants father had taken the shop on lease under the qabuliat mentioned above, that the notice to quit was according to law, that the defendants had failed to prove that they had rebuilt the shop and that the suit was not barred by rea judicata, inasmuch as the previous suit in 1929 was for possession against a trespasser and for the recovery of the price of certain materials wrongfully utilized by the defendants in reconstructing the shop. It may be noted that it was held in the previous suit that the defendants were really tenants of the plaintiffs and not their licensees. In the result the trial Court decreed the suit for ejectment as well as for arrears of rent. In appeal the learned Civil Judge agreed with the trial Court in regard to the decision about the validity of the notice and the suit being not barred. About the materials of the shop he held that the defendants must have used new materials when they rebuilt the shop and therefore allowed them to remove those materials within a month from the date of the appellate decree. As to costs the lower Appellate Court ordered that the parties should bear their own costs in both the Courts.

(3.) In this second appeal the defendants pray that the suit of the plaintiffs be dismissed with costs. Their contention is that the notice to quit was not valid and further that the defendants having been found to have rebuilt the shop, the original tenancy set up by the plaintiffs must be deemed to have come to an end. The plaintiffs have filed a cross-objection in which they take exception to the decision of the lower Appellate Court allowing the defendants to take away the materials of the shop and disallowing the plaintiffs the latter's costs of the litigation. As to the appeal, only one point has been pressed before me and that is about the validity of the notice. The argument of learned Counsel for the appellants is that the term of the original lease was for one year, that is from Kunwar Sudi 10 Sambat 1966 to Kunwar Sudi 10 Sambat 1967, corresponding to 13 October 1910, and when the lessee or his representatives were allowed to hold over, the new tenancy commenced from 14 October 1910, and therefore the notice given on the basis that the tenancy was from the 24 of each month was invalid.