Decided on August 25,1972



- (1.) THIS is a second appeal filed by the defendant-tenant against the judgment dated 9-8-1971 of the Third Extra Assistant Judge, Nagpur, in Civil Appeal No. 138 of 1971 dismissing the appeal filed by the defendant and confirming the judgment and decree passed by the Fourth Joint Civil Judge, Junior Division, Nagpur, in Regular Civil Suit No. 175 of 1970, decided on 31-3-1971, directing the defendant-tenant to vacate the suit premises and to deliver possession of the same to the plaintiffs. By this decree the defendant was further ordered to pay Rs. 1510/- and costs by the suit to the plaintiffs and an enquiry into the mesne profits in respect of the suit premises from 26-2-1970, the date of the institution of the suit, till delivery of possession was also ordered.
(2.) CIVIL Suit No. 175 of 1970 was filed by the plaintiffs-landlord for ejectment and mesne profits regarding the suit premises, that is a bungalow, bearing Corporation House No. 64/0-4 situated in Ward No. 38 at Nagpur. It was alleged in the plaint by the plaintiffs that by registered sale-deed dated 1-3-1966 they purchased this bungalow. Even prior to purchase of this bungalow the defendant was a tenant and after the purchase of the house the defendant attorned the tenancy of the premises in favour of the plaintiffs and also paid the rent. After purchase of the house, as the plaintiffs badly needed the house for their own residence, they filed an application to the Rent Controller for permission to determine the tenancy, of the defendant and the Rent Controller by his order dated 23-8-1967 granted permission to the plaintiffs to determine the tenancy of the defendant in Revenue case No. 583/a-71 (2) of 1965-66. As the permission granted by the Rent Controller was a partial one, an appeal was filed against the said order and the appellate authority granted permission in respect of the whole house by his order dated 2-3-1968 in Revenue Appeal Nos. 43, 44 and 55/a-71 (2) of the 1967-68. Against this order a writ petition was filed in the High Court, being Special Civil Application No. 823 of 1968, by the tenant and that writ petition was also dismissed.
(3.) THEREAFTER a notice dated 10-3-1968 determining the tenancy of the defendant was served on the defendant and since the defendant did not vacate the premises, a suit for ejectment was filed by the plaintiffs. This suit was numbered as Civil Suit No. 813 of 1968. It is alleged by the plaintiffs that this suit was withdrawn by them as they found that the notice was defective. Thereafter a fresh notice was served on 7-11-1968 terminating the tenancy of the defendant with effect from 24-12-1968 and as the defendant failed to vacate a suit bearing Civil Suit No. 175 of 1970 was filed. In this suit the plaintiffs have also claimed rent and mesne profits.;

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