Decided on May 18,2007

Darshan Mala Jain Respondents


J.M.MALIK,J. - (1.) HAVING lost the case before the two courts below which decreed the plaintiff suit for possession and mesne profits, the legal representatives of the appellant/ defendant have filed this second appeal. The plaintiff / respondent no. 1 Smt. Darshan Mala inducted one late Mulkh Raj as a tenant in respect of the suit property at monthly rental of Rs. 50.73. Respondent no. 1 terminated the above said tenancy vide notice dated 01.08.1971. As Mulkh Raj did not vacate the premises, therefore, his possession continued as a statutory tenant. Mulkh Raj died in November 1979 leaving behind two daughters viz. Leela, respondent no.
(2.) (since deceased) and Sheela, respondent no. 3. Since both the daughters were married and were not dependent upon Mulkh Raj, therefore, they had no right to occupy the suit property. In January, 1980 both of them sub-let the case property in favour of Ved Prakash Gupta, appellant / defendant no. 3. Respondent no. 1 filed a suit for possession and also claimed damages in the sum of Rs. 1,623.36 for use and occupation for a period of 32 months ending on 31st March, 1982 from respondent nos. 2 & 3 at the rate of Rs. 50.73 per month, the same rate which was paid by late Mulkh Raj during his life time. 2. Smt. Leela(since deceased) listed the following defences in her written statement. The possession of suit premises was given to Sh. Chakresh Kumar, son and attorney of the plaintiff in January 1980 after the kriya ceremony of Sh. Mulkh Raj after settling all dues as full and final settlement. The service of notice upon her father has been denied. She explained that Mulkh Raj died on 05.01.1980. Smt. Sheela was proceeded against ex parte. Defendant no. 3 / appellant set up the following defences in his written statement. He took a preliminaryobjection that appellant Ved Prakash Gupta was inducted as a tenant by Smt. Darshan Mala through her son Sh. Chakresh Kumar, after the vacant possession of the same was delivered by Smt. Leela to him after the kriya ceremony of Shri Mulkh Raj. Consequently, Ved Prakash Gupta became direct tenant under the respondent. However, on merits the appellant took a wee bit incongruous stand. He explained that after the death of Sh. Mulkh Raj, possession of the quarter in question was handed over by Smt. Leela to respondent No.1 through her son Sh. Chakresh Kumar, who always acted for and on behalf of the respondent in respect of the entire suit property with all the occupants of the said property and who later on in June 1981 inducted the appellant as a tenant in the suit property at the rental of Rs. 50.73 paise. He further averred that he was inducted in another premises of the said property on the ground floor at a monthly rental of Rs. 50/- only and the rent stands paid upto May, 1982. Both the said premises are in possession of the appellant. It is contended that the rent upto May 1982 stands paid.
(3.) THE learned counsel for the appellant argued that two material points go to establish that he is a tenant under Smt. Darshan Mala. First of all, he had filed a receipt Ex. PW1/D1 before the trial court which goes to reveal that the appellant had paid consolidated rent in the sum of Rs. 1,175.18 for the period 11.06.1981 to 31.05.1982.;

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