MAHENDRA DAYAL, J. - (1.) THE defendants -appellants have preferred this second appeal against the judgment and decree dated 17.03.1972 passed by the learned Munsif, Barabanki in Regular Suit No.276 of 1969 and the judgment and order dated 30.09.1981 passed by the First Additional District and Session Judge, Barabanki in Regular Civil Appeal No.39 of 1979.
(2.) THE brief facts giving rise to this second appeal are that the plaintiffs -respondents filed a suit for recovery of Rs.300/ - as arrears of rent and ejectment of the defendants -appellants from the shop in dispute, which was allotted to Shri Kesav Ram Gupta vide allotment order dated 29.03.1963. The monthly rent was Rs.24/ - per month. The case of the plaintiffs -respondents was that Kesav Ram Gupta had sublet the shop illegally and without the consent of the plaintiffs -respondents, to Amar Nath and Gopti Nath defendants nos. 3 and 4 of the original suit. It was further alleged that Amar Nath had an influence in the office of the Rent Control and Eviction Officer and had obtained an allotment order in favour of his wife Smt. Kastauri Devi. The plaintiffs -respondents alleged that they had no knowledge of the said allotment order passed in favour of Smt. Kasturi Devi. The plaintiffs -respondents served a combined notice dated 06.11.1969 terminating the tenancy of Kesav Ram Gupta and the alleged sub -tenants which was served upon them but as they failed to vacate the premises in their occupation, suit was filed for the relief of ejectment and recovery of arrears of rent amounting to Rs.300/ -.
(3.) SMT . Kasturi Devi defendant -appellant No.2 contested the suit and filed her written statement. The remaining defendants of the original suit did not file any written statement. Consequently, the suit proceeded ex -parte against them. The appellant -defendant No.2 denied the factum of sub -tenancy and stated that she had purchased all the materials of the shop along with furniture from the defendant -appellant no.1, who himself reported the vacancy to the Rent Control and Eviction Officer and the shop was subsequently allotted to the appellant -defendant no.2. It was further alleged that after the allotment order in favour of the appellant no.2, the defendant -appellant no.1 Kesav Ram Gupta had no concern with the shop. It was also alleged that the plaintiffs -respondents had accepted the rent from the appellant -defendant no.2 and as such they were estopped from denying her status as tenant. The defendant -appellant no.2 further alleged that the rent upto November 1969 had already been deposited in the Court and she was ready to pay the arrears of rent to the plaintiffs -respondents. The defendant -appellant no.2 also took it as a ground that she was not served with any notice as required under Section 3(1)(a) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter referred to as "the U.P. Act No.3 of 1947). The learned Munsif, before whom, the trial was pending framed four issues on the basis of the pleadings of the parties. The first issue was as to whether the defendant no.1 Kesav Ram Gupta had sublet the accommodation to the defendants nos. 2 to 4. The second issue was to the effect as to whether the defendant -appellant no.2 was the tenant of the shop in question. The third issue was framed on the validity of the notice and fourth issue was with regard to the relief to which plaintiffs -respondents were entitled. The learned trial court on the basis of the evidence on record recorded a finding that the defendant -appellant no.2 was not the tenant of the defendant no.1 but was the tenant of the plaintiffs -respondents. The next issue no.2 was also decided in favour of the defendant -appellant no.2 holding her as tenant of the shop in question. With regard to validity of the notice, the learned trial court held that the notice was invalid. On the basis of the aforesaid findings, the suit was decreed only in respect of the arrears of rent but was dismissed for the relief of ejectment. The plaintiffs -respondents were given liberty to withdraw the rent deposited by the defendants -appellants no.2 to 4 in the Court.;