A.N.Varma, J. - (1.) -This is a tenants petition. It is directed against a decree passed by the learned IInd Additional District Judge, Allahabad allowing a revision filed by the plaintiff respondents Nos. 2 to 5 under S. 25 of the Provincial Small Cause Courts Act and decreeing their suit for ejectment of the petitioners as well as for recovery of arrears of rent and damages.
(2.) Shortly stated the plaint case was that one Abdul Shakoor (husband of Smt. Ummatunnissa-defendant No. 1, who died during the pendency of the revision in the Courts below and father of the petitioners) was the tenant of the premises in dispute which the plaintiff had purchased under a sale deed dated 7-3-1972 from its previous owner namely Smt. Bilquis Begam. The agreed rent was Rs. 35/-which was raised to Rs. 43.75 p. under S. 5 of U. P. Act No. 13 of 1972. The tenant fell in arrears of rent from September, 1971 up to the date of the purchase of the property by the plaintiff. The arrears of rent up to the date of the said purchase were also transferred to the plaintiffs through the sale deed. The defendants failed to pay arrears of rent and hence a composite notice dated 30th May, 1975 demanding the arrears and terminating the tenancy under S. 106 of the Transfer of Property Act was served on the various defendants. The defendants, however, neither paid the arrears of rent nor vacated the premises and hence the suit for ejectment of the petitioners as well as for recovery of arrears of rent amounting Rs. 1,201.66 for the period 1-3-1972 to 11-7-1974 and a sum of Rs. 202.70 p. as damages for use and occupation for the period 12-7-1974 to 30th Nov., 1974. A relief for pendente and future damages at the rate of Rs. 43.75 p. was also claimed.
(3.) The defendants contested the suit on the ground that the premises in dispute were let out to both Abdul Shakoor and his brother Nazeer Ahmad on a monthly rental of Rs. 30/- by Ahmad Khan and Rahmat Khan, the previous owners of the premises in dispute from whom Smt. Bilquis Begam had purchased the property by means of the sale deed dated 7-11-1956. Thus, both Abdul Shakoor and Nazeer Ahmad were the co-tenants of the premises, inasmuch as, neither any notice of demand nor of termination of tenancy under S. 106 of the Transfer of Property Act having been served on the surviving co-tenant namely, Nazeer Ahmad and further Nazeer Ahmad not having been impleaded in the suit, the suit was incompetent in law. As regards the rate of rent, it was asserted that the agreed rent was Rs. 30/- and mot Rs. 35/-. In regard to the plea of enhancement of rent under S. 5 of U. P. Act No. 13 of 1972 the defence was that no notice was served on the defendants under the provisions and that in any case, inasmuch as, by means of the said notice, the plaintiffs demanded Rs. 43.75 p. which was not the statutory amount to which the rent could be enhanced the same was invalid. The enhancement of rent was, therefore, of no legal effect.;