Hari Nath Tilhari, J. - (1.) This is deponent's second appeal arising out of judgment and decree dated 20-3-1970, passed by second Additional District Judge, Kanpur, in Regular Civil Appeal No. 12/1968 (Syed Manzoor Hussain Versus-Anjuman Islamiyan Yateemkhanna, Parade, Kanpur), dismissing the defendant's first appeal and affirming the judgment and decree dated 6-12-1967 as passed by Shri Brij Mohan, IVth Additional Civil Judge, Kanpur in Original Suit No. 1705 of 1966, Anjuman Islamiyan Yateemkhana v.' Syed Manzoor Hussain, whereby the trial court had decreed the plaintiff respondent's suit for ejectment of defendant appellants from the room described as Berki Press situate in Premises or House No. 86/14' Parade, Kanpur, as well as for recovery of a sum of Rs. 6,43-00 described in the judgment decree of the trial Court as Theka money.
(2.) As per plaint allegations, the plaintiff claimed to be a registered shop with Shri Adbul Bhai Suleza as its duly elected secretary who had signed and verified the plaint. The plaintiff claims to be the owner of property described as Berki press having 3 H. P. electric motor, one grinding machine, one Shefty pipe. The plaintiff alleged that the said press was for sometimes being run by different persons who had taken the same on Theka from plaintiff The plaintiff further alleged that one Babu Hidayat Ullah (deceased at the time of filing of the suit,) owned a Letho machine which he had placed in Berki Press. The Plaintiff alleged that Babu Hidayat Ullah was the member of the Managing Committee of the plaintiff's institution. The plaintiff respondent further alleged that Babu Hidayat Ullah as the Ex-member of the Managing Committee of the plaintiff with the approval of the Managing Committee on 15-5-1957 entered into an agreement on behalf of the plaintiff with the defendant regarding the Theka of Berki Press along with Letho Machine belonging to Babu Hidayat Ullah and which Thekanama was duly executed between the parties on 15-5-57 on terms and conditions, referred to in paragraph 4 of the plaint and exhibited by documents. It was further asserted that defendant agreed to run a Berki Press and used Letho Machine on the terms and conditions set-out in the para 4 of the plaint. According to the plaint case, the said arrangement continued upto year 1960 when defendant-appellant wanted to install one machine of his own and offered to pay Rs. 20/- per month for the working of one more Letho machine meant to put further strength on the premises. The plaintiff alleged that plaintiff agreed with the offer of the defendant and on 31-1-60 another agreement was entered into which the plaintiff has described as Thekanama on where under the defendant had agreed to pay in all a sum of Rs. 220/- for the use of Letho machine of late Babu Hidayat Ullah as well as his own i.e. plaintiff's own machinery and for the accommodation and the goodwill and the name of the press. The plaintiff had given the details of the said sum out of Rs. 220/-, Rs. 100/- was to be paid to Babu Hidayat Ullah with reference,to the user of Letho machine of Babu Hidayat Ullah by the defendant.and a sum of Rs. 120/- was to be paid to the plaintiff in accordance with the terms and fresh agreement alleged in the plaint to be the fresh Thekanama for the period commencing from 1-2-1960 upto 31-3-1964. The plaintiff further averred that in pursuance of the fresh Thekanama and its terms, a settlement on account of Theka for the period from 1-2-60 to 31-3-64 did take place between the parties and the same was duly signed according to the plaintiff's case by the defendant.
(3.) According to plaint case, as per settlement of the rent or Theka rent a sum of Rs. 6,000/- was found to be due to plaintiff for the above mentioned period @ Rs. 120/- per month out of which the defendant paid Rs. 5740/- in cash and the balance of Rs. 260/-was to be discharged by adjustment towards the costs of repairs and the defendant thus acknowledged according to plaint case bis liability to pay in all a sum of Rs. 120/- per month as monthly Theka amount of Berki press, his machinery, goodwill and the name. The plaintiff further averred that after some time the electric motor belonging to plaintiff had gone out of order and so the defendant had to get a substitute motor of his own for which he paid Rs. 30/- per month and this sum of Rs. 30/- was chargeable from the total amount of Rs. 120/- resulting in reduction of the sum of Rs. 120/- into a sum of Rs. 90/- per month and so from 1 -4-64 to 31 1 -66 a sum of Rs. 1,980/- had become due which according to plaint case defendant failed to pay in spite of repeated oral demand.;