B.D.AGRAWAL, J. - (1.) THIS appeal is directed against the judgment and decree of the Additional District Judge, Kanpur dated October 14, 1966.
(2.) THE dispute relates to a portion of house No. 15/68, Parmat (Civil Lines), Kanpur. The suit giving rise to this appeal was instituted on September 3, 1960. The allegations in so far as relevant are that Babu Nandan was the tenant of this portion of payment of rent at the rate of Rs. 63/- per month. The premises was purchased by the plaintiff on October 22, 1955. Babu Nandan died in February, 1958. Thereafter his widow remained in occupation as the tenant. The rent was in arrear since November 23, 1955. A combined notice under Section 3(1)(a) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, (thereinafter referred to as the Act No. III of 1947) read with Section 106 of the Transfer of Property Act was given by the plaintiff other under registered cover on December, 1, 1959 which was duly served. The relief sought is ejectment besides recovery of arrears of rent commencing from 1.12.1959 and damages for use and occupation. The defendant No. 1 widow of Babu Nandan aforesaid contested the suit pleading that Babu Nandan was admitted to the entire premises as a Thekedar and it is not correct that he was the tenant of a portion only of the building. According to her, the husband was authorized to realise rent from other tenants in the premises and to admit them as such. The rent was admitted to be in arrears but it was asserted that the plaintiff had restrained the sub-tenants from making payment on account of which arrears could not be cleared. The notice aforesaid was said to be invalid since this pertains only to a portion of the premises. The trial Court came to the finding that Kali Charan - father-in-law of the defendant No. 1 was the original tenant of the portion in dispute. Upon his death, the tenancy developed on his four sons. The other heirs, however, relinquished their interest in favour of the landlord prior to October 22, 1955 when the plaintiff made the purchase of the building. Babu Nandan was the exclusive tenant of the portion in dispute only during his life time. His tenancy was determined by a notice under Section 106 of the Transfer of Property Act dated November 15, 1957. In the opinion of the trial Court, it was immaterial that notice was not given to his other heirs except the defendant No. 1. The defendant No. 1 had made default in payment of rent within the meaning of Section 3(1)(a) of U.P. Act No. III of 1947 and hence she was liable to ejectment. The suit was decreed accordingly on January 1, 1965 for her ejectment besides recovery of arrears of rent and damages for use and occupation.
(3.) THE defendant No. 1 alone preferred an appeal against the decree passed by the trial Court. the lower appellate Court observed that the decision In O.S. No. 1684 of 1959 filed by the plaintiff against the defendant No. 1 operated as res judicata on the point that she was the exclusive tenant of the portion in dispute. It further held that on the basis of the admission made by the defendant No. 1, it was established otherwise as well that she was the exclusive tenant and thus the tenancy was legally determined by notice served upon her. The decree passed by the trial Court was, therefore, confirmed on October 14, 1966.;