- (1.) THE facts of this case are given in the judgment of the lower appellate Court but it may be convenient to state them briefly here. Lala Saheb Dayal was the owner of the house in suit. He got indebted and there was a decree against him in favour of one Devendra Nath for about Rs. 1,200/ -. On 15-8-1932, Sahib Dayal executed a sale-deed of the house in favour of Sri Krishna das for Rs. 1,260/ -. Sahib Dayal was related to Sri Krishna Das and was also working as his servant. This document was presented for registration and was registered on 17-8-1932. On the date of the registration of the document Sahib Dayal executed a 'sarkhat' in favour of Sri Krishna das to the effect that he would continue to remain in possession of the house for one year and pay him rent at the rate of Rs. 13/- per mensem. Sri Krishna Das, after he purchased the property, paid off Davendra Nath and satisfied the decree. Sahib Dayal and his two sons, who are the defendants-respondents, continued to live in this house taut no rent was ever paid to Sri Krishna Das in Sahib Dayal's lifetime or demanded by him. In 1944 Sahib Dayal died. After his death on 14-8-1944, Sri Krishna Das gave a notice, ext. A-21, that the defendants were in possession of the house as his tenants but they had not paid rent and they should pay the rent at Rs. 13/-per month and also demanded payment of rent for the last three years previous to the date of the notice. On 17-8-1944, the defendants sent a reply that the house was their ancestral property, that they were not his tenants and that he had no right to demand any rent from them. Sri Krishna Das sold the house to the plaintiff and the plaintiff then filed a suit No. 42 for arrears of rent and for ejectment of the defendants treating them as tenants. The defendants, however, took the plea that they were not tenants of the plaintiff, that no proper notice in accordance with the provisions of Section 106, T. P. Act had been given and that no rent was due from them. The learned Munsif held that it was not established that the relationship of landlord and tenant existed between the plaintiff and the defendants, that the notice was invalid and that no rent was due from the defendants to the plaintiff. The suit was, therefore, dismissed with costs.
(2.) THEREAFTER, the plaintiff filed the suit out of which this appeal has arisen and in the plaint no mention was made that the plaintiff was the landlord or that the defendants were tenants. All that the plaint stated was that the plaintiff was the owner by purchase of the house, that Sahib Dayal on 17-8-1932, had executed a 'keraya nama' in favour of Sri Krishna Das and had remained in possession, that the defendants had denied the title of the plaintiff that they were liable to ejectment and were liable to pay a sum of Rs. 400/- for use and occupation of the house.
(3.) IN the written statement filed on behalf of the defendants it was pleaded that the sale deed as well as the 'sarkhat' executed by Sahib Dayal were fictitious documents, that Sahib Dayal had executed the sale deed to save the property from his creditors and that Sahib Dayal, and after his death the defendants, had all along remained in possession as proprietors, that there had never been any relationship of landlord and tenant between them nor had any rent been ever paid. A plea was, however, also taken in the written statement that the plaintiff's suit was barred by limitation though no particular article of the Limitation Act was mentioned in the written statement.;