- (1.) S. U. Khan, J. This is tenant's writ petition arising out of Suit for eviction filed by landlord-respondent No. 3 Janki Prasad in the form of Suit (SCC Suit) No. 54 of 1987 on the file of JSCC, Moradabad. Eviction was sought on the ground of default and decree for recovery of arrears of rent was also prayed for. The suit was decreed for eviction as well as recovery of arrears of rent through judgment and decree dated 11-10- 1988. Tenant- petitioner filed SCC Revision No. 74 of 1988 against the said judgment and decree. IInd A. D. J. , Moradabad through judgment and order dated 8-11-1989 dismissed the revision hence this writ petition.
(2.) PROPERTY in dispute is a quarter situate in Ashok Nagar, Moradabad. It was allotted to the petitioner in the year 1953 and in the allotment order Hemraj real brother of plaintiff Janki Prasad was shown to be the landlord. Initially rate of rent was Rs. 10/- per month. In the plaint it was stated that since 1972 rent had been enhanced to Rs. 15. 62 by the landlord through notice dated 28-8-1972 served upon the petitioner on 30-8-1972 and that since 1972 no rent had been paid. It was further stated that tenancy of the petitioner was terminated through notice dated 9-1-1987. The tenant filed written statement pleading therein that Hemraj was his landlord who had died and after his death he was paying rent to Smt. Bhagwati Devi widow of Hemraj and that he had paid rent to Smt. Bhagwati Devi till May 1987 against receipt. Petitioner stated that he was not aware that how plaintiff Janki Prasad became landlord. It was also stated that suit was bad for non-joinder of Smt. Bhagwati Devi. During the trial of the suit plaintiff took up the stand and adduced evidence to the effect that his mother Smt. Parwati was the owner of the property in dispute and other adjoining properties and that in the year 1955 a partition had taken place in between him and his brothers including Hemraj and under the said partition property in dispute had fallen in his share. It was further asserted that in respect of the said partition a memorandum (yaddasht) was prepared. It was further stated that petitioner had been told about the partition. However, no such case was taken by the plaintiff that any written information regarding partition was given to the petitioner. Plaintiff filed some money order receipts showing that petitioner had sent some rent to him through money order. Plaintiff further took up the case that Smt. Bhagwati Devi widow of Hemraj had sent a telegram to him asking for some financial help and on the basis of that plaintiff instructed the petitioner to pay rent to Smt. Bhagwati Devi for some time, however, through notice dated 28-8-1972 petitioner was again directed to pay rent to the plaintiff.
(3.) TENANT-petitioner denied receipt of notice dated 28-8-1972. The trial Court/jscc, Moradabad held that plaintiff had proved the partition and defendant was defaulter as he had not paid the rent to the plaintiff. Trial Court did not say a single word regarding allegation of the petitioner that he had paid rent to Smt. Bhagwati Devi till May 1987. Trial Court also did not record any finding that copy of memorandum of partition was supplied to the tenant or that Smt. Bhagwati Devi ever intimated the petitioner about the partition. Plaintiff neither impleaded Smt. Bhagwati Devi in the suit nor examined her as witness.;