U.C.Srivastava, J. - (1.) The second appeal is directed against the judgment and decree passed by the Court of VII Additional District Judge, Lucknow, allowing the defendant's appeal and dismissing the plaintiffs' suit and thereby reversing the order passed by the Court of Munsif South Lucknow, decreeing the plaintiffs' suit for arrears of rent and ejectment. The plaintiff's filed a suit for arrears of rent and ejectment against the defendant alleging that the defendant was tenant of the plaintiffs at the rate of Rs. 10/ - per month and that the amount of arrears of rent was due against him which he has not paid despite service of notice on him and has not vacated the premises in question. The disputed premises are house No. 581/152 situate in Mohalla Bhindiya Tola, Maha Nagar Lucknow the boundary of which given in the plaint is as follows: East: - -House of Khanai Tamoli. West: - - -House of Sita Ram Rastogi. North: - -Road and House of D.P.N. Rai Sharma. South: - -House of Pandit Mata Badal. Plaintiff No. 1 purchased the said house from Murlidhar vide registered sale -deed dated 10 -2 -1980 who, in turn, transferred the said house to the plaintiff No. 2 vide registered sale -deed dated 10 -9 -1980 alongwith arrears to rent and that is why both of them have joined as plaintiffs in the said suit. The boundary of the house given in the plaint is the same which finds place in the sale -deed executed by Murlidhar in favour of plaintiff No. 1, and the very same boundary finds place in the sale -deed executed by the plaintiff No. 1 in favour of plaintiff No. 2.
(2.) The suit was filed in the Court of Judge, Small Causes as under the Civil Laws Amendment Act suit between the landlord and tenant became cognizable by the Court of Judge Small Causes. The defendant filed written statement and alleged that he was owner and in possession of the house in dispute (emphasis supplied) as such the suit was liable to be dismissed. The defendant further pleaded that the Court has no jurisdiction to try the suit as the dispute is for ownership, and that the plaintiffs should have filed suit for declaration and instead of that they have filed a suit for arrears of rent and ejectment which is liable to be dismissed. On this objection the plaintiffs applied for the return of the plaint. The plaint and the written statement both were returned to the plaintiffs who thereafter filed the same in the Court of Munsif in which Court the trial of the suit proceeded. Both the parties tendered evidence. Although no plea on the basis of will was taken by the defendant nor did he amend the written statement or moved an application for filing fresh written statement. Regarding Will, the basis of his title statement under Order 10 Rule 2 C.P.C. the same was unregistered and was on a plain piece of paper said to have been executed by Murlidhar on 15 -3 -1971 i.e., after the execution of the sale -deed bequeathing house No. 531/152 in favour of the defendant. The boundary of the said house as given in the said will is as follows: - - East: - -House of Khanai Tamoli. West: - -House and Hata of executant. North: - -Pratap Singh Road. South: - -Vacant land of Maiku Lal.
(3.) On the pleadings of parties the trial Court that is the Court of Munsif where the plaint was presented again after taking back from the Court of Judge Small Causes, following issues were framed: WHETHER the plaintiff is landlord of the house in suit as alleged in para 1 of the plaint? Whether the defendant is tenant of the house in suit as alleged in para 2 of the plaint? WHETHER the defendant defaulted in payment of rent as alleged in para 3 of the plaint? WHETHER the defendant is the owner in possession of the house in suit hence the suit for arrear of rent and ejectment not maintainable? To what relief, if any, plaintiff is entitled? By this Court an additional issue has been framed: WHETHER the plaintiff No. 2 is entitled to a decree for declaration against defendant that he is owner and landlord of house No. 531/152 Bhindia Tola Bara Chandganj Lucknow? ;