- (1.) THIS is a defendant's appeal arising out of a suit for possession and recovery of Rs. 2201 by way of damages for use and occupation at the rate of Rs. 30 per month. The suit was based on title and the defendants were alleged to be trespassers. The defence was that they were tenants and could not be ejected without a valid notice under Section 106, T. P. Act terminating their tenancy.
(2.) THE facts giving rise to the suit were as follows:- The plaintiff-respondent was the landlord of the disputed premises which were governed by the provisions of U. P. (Temporary) Control of Rent and Eviction Act (hereinafter referred to as 'the Act'). Behari Lal, the predecessor in-interest of the appellant, was the tenant of the premises at a monthly rent of Rs. 23. Behari Lal fell into arrears and a suit for ejectment and arrears of rent was filed against him. The suit was decreed for arrears of rent only. It appears that the decretal amount remained unpaid for some time and the landlord served a composite notice under Section 3 of the Act and Section 106 of the T. P. Act terminating his tenancy and requiring him to pay the decretal amount as also the arrears falling due after the decree. He was required to vacate the premises after the period of notice. The decretal amount, it appears was deposited in court in satisfaction of the decree. The landlord, however, had filed the suit on the ground that since the amount had not been paid to him he was in default and liable to ejectment. The suit was dismissed by the trial court, but decreed by the lower appellate court. On a second appeal to this Court, the suit was dismissed on the finding that there was no default as the rent accruing after the decree was paid to the landlord while that due under the decree had been deposited in court. It appears that during the pendency of the second appeal Behari Lal had died and was substituted by his heirs and legal representatives who are the defendants in the instant suit. The appeal was prosecuted by them and the decree was passed in their favour. After the dismissal of that suit in second appeal, the landlord filed the instant suit giving rise to this appeal on the allegations that Behari Lal's tenancy having been terminated by a notice under Section 106 of the T. P. Act, he remained only a statutory tenant thereafter which was not heritable in law, consequently the defendants after the death of Behari Lal were trespassers to the premises and liable to ejectment.
(3.) THE defence delivered was that the suit against Behari Lal having been dismissed by this Court, the notice given to Behari Lal exhausted itself and was ineffective in law; and since a fresh suit against Behari Lal could not be filed without terminating his tenancy a fresh suit against the appellant could likewise not lie without terminating his tenancy. Both the courts below have decreed the suit for possession and recovery of damages on the finding that the defendants were trespassers and liable to ejectment from the premises. The trial court decreed the damages at the rate of Rs. 50 per month while the lower appellate court has modified that part by awarding Rs.30 per month.;