- (1.) KUNJ Behari Lal has filed this appeal from a concurrent decree of his eviction from an accommodation, which comprised a building and open land, of which the plaintiff-respondent, Shivjee Maharaj Virajman Mandir is the landlord.
(2.) THE facts necessary for under standing the controversy involved in this appeal may be briefly stated as follows:- The building and the open land appur tenant to it, enclosed hi a compound, origi nally were the property of Chhitarmal, who endowed the same to Shivjee Maharaj. By a deed of lease dated 30-10- 1937 the said properties were demised for a period of 20 years on an annual rent of Rs. 108/- to Lala Ratan Lal for the purpose of doing business by installing machinery on the land and raising constructions with the condition that the already existing constructions or the building were to be used by him and on the expiry of the term of the lease the vacant land and the existing building as such would be restored to the possession of the lesson and , the lessee would be entitled to remove the superstructures of the construction rais ed by him during the subsistence of the lease. On 2-9-1952 by a deed of assignment Lala Ratan Lal transferred the lease hold rights absolutely to the appellant, Kunj Behari Lal, and delivered possession to him. It has come in evidence on record that Lala Ratan Lal had raised certain constructions as permitted by the terms of the lease and they were also transferred to Kunj Behari Lal, who as assignee came into possession of the premises so demised. Lala Ratan Lal did not pay any rent to the plaintiff-landlord after he had made the assignment on 2-9-1952 and the half yearly rent sent by money orders by Kunj Behari Lal, the assignee, as pel terms of the lease was always refused by the plaintiff- landlord. It appears from the evidence on record that the last money order sent by Kunj Behari Lal was refused in October, 1965 by the plaintiff-landlord. By a notice dated 21-8-1965, which was a composite notice, addressed to Lala Ratan Lal and Kunj Behari Lal, served upon them on behalf of the plaintiff- landlord, a demand was made from Lala Ratan Lal for pay ment of the arrears of rent within one month of the receipt thereof and the tenancy was terminated undei Section 106 of the Transfer of Property Act on the expiry of the period of one month from the service of the notice. Lala Ratan Lal did not pay the arrears as demanded by the notice and Kunj Behari Lal did not vacate the premi ses by delivering possession to the plaintiff-landlord on the expiry of one month from the date of the service of notice. In the said notice, paper No. 7-A on record, Kunj Behari Lal was described as a subtenant of Lala Ratan Lal. Since the plaintiff-landlord failed to get vacant possession of the pre mises let out, the suit giving rise to this appeal was filed in the court of the Munsif of Chandausi. It was alleged, inter alia, in the plaint that though the lease, according to the terms thereof, stood determined on 31-10-1957, yet no suit was filed because the defendants always represented to the plaintiff's representative that they would be soon vacating the premises and the relations being good between the parties the plaintiff's agent did not file the suit and waited for amicable settlement. Subsequently when it appeared that the defendants had no inten tion of acting upon their promise a notice was served on 21-8-1965, demanding the ar rears of rent and terminating the tenancy. On the pleadings in the plaint Ratan Lal, who was impleaded as the first defendant, seems to have been treated some kind of tenant holding over 01 as statutory tenant and the tenancy was treated as one at will that is a monthly tenancy while Kunj BehariLal, who was impleaded as second defen dant, was described as a sub-tenant. In order to get over the bar of Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, it was pleaded that the first defendant was in default in payment of rent despite a demand by notice and that die defendants were guilty of making material alterations without the consent of the land lord in the accommodation let out The first defendant, Ratan Lal, did not take any interest in the proceedings beyond filing a written statement saying that he had transferred the lease-hold rights to the second defendant, Kunj BehariLal, and he being no longer in possession was not interested. The second defendant, Kunj Behari Lal raised a serious contest He denied the allegation of the plaintiff in re gard to material alterations and also plead ed that he being the tenant, as an assignee, was not in default as he had been tendering lent regularly in terms of the tease which tender was wrongly and illegally refused by the plaintiff-landlord and that no notice of demand of arrears of rent 01 termination of his tenancy having been served upon him, he was not liable to be evicted and the suit of the plaintiff as against him was bar red by the provisions of Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act.
(3.) ABOVE then is the brief summaiy of the material pleadings of the parties.;