M.P.MEHROTRA,J. - (1.) THIS is a plaintiff's second appeal arising out of a suit for eviction and for arrears of rent and mesne profits which was filed by the plaintiff claiming to be the landlord of the suit accommodation. The defendant No. 1 Hukum Chand was said to be the tenant and the defendant no. 2 was said to be the sub-tenant. The ejectment was sought 1976 (2) Smt: Mayawati v. D. P. Sharma (Alld. B.C.) 735
(2.) ON the ground of illegal sub-letting and wilful G. fault in the payment of arrears of rent despite notice. The tenancy was determined by the notice under section 106 of the Transfer of Property Act and thereafter the suit was filed. It may be stated that the accommodation in dispute is situated in the contonment area of Meerut and, therefore, U. P. Act. No. 10 of 1952 governs the case. The brief facts are these: Defendant No. 1 Dharam Pal was the tenant of the plaintiff Smt. Mayawati in the lower a story of house no. 209 Dholki Mohalla/'Meerut Cantt. The monthly rent payable by the defen­dant was Rs. 17/- Rent fell due for the period commencing from 1st December 1964 and, therefore, a notice was sent to the tenant (defendant no. 1) which was served on 5th February, 1965. The tenancy was also determined by the same notice. It was further alleged that the defendant no. 1 illegally sublet the accommodation in dispute to his brother Hukum Chand who is the defendant no. 2 The defendants did not vacate the accommodation even on the expiry of the notice period and, therefore, the plaintiff sued for the eviction of the defendants for the suit accommodation and for recovery of Rs. 55/- as arrears of rent, Rs. 14/- as past mesne profits and for pendente lite and future mesne profits at the rate of Rs. 25/-per month. The two defendants entered defence and filed separate written statements. Dharam Pal, defendant no. 1 contended that initially about 24 or 25 years back he and his brother, the defendant no. 2, took the disputed accommodation on a monthly rent of Rs. 3.50 from the mother-in-law of the plaintiff. Both the defendants are real brothers. Rest receipts were mostly issued in the name of defendant no. 1 although they were occasionally issued in the name of defen­dant no. 2 and his wife. Hence the defendant no. 2 was rot the sub-tenant. The defendant no. 1 shifted to village Pengha and as the landlady was not on good terms with the defendants, the defendant no. 2, in the circumstances, was advised to have the house allotted in his favour from the Station Staff Officer, Meerut. The house was later on allotted in the name of defendant no: 2 regu­larising his exclusive occupation after the departure of the defendant no. 1 to village Peghna and thus with effect from 21st December, 1964, the defendant no. 2 became the exclusive tenant of the plaintiff. The defendant no. 1 further alleged that the amount of rent due was remitted through Money Order which the plaintiff deliberately refused to receive. Thus there was no default in payment of arrears of rent. According to the defendant no. 1 there was no question of the determination of tenancy as he had already ceased to be a tenant of the disputed accommodation and the defendant no. 2 alone was the tenant of the plaintiff. The defendant no. 2 Hukum Chand alleged that the tenancy of his elder brother Dharam Pal was for the benefit of the whole family including Hukum Chand, his wife and children. The other pleas taken up by the defendant no. 1 were also supported by this defendant. He claimed that he was a tenant in his own right by virtue of the allotment order from the Station Staff Officer, Meerut. The trial court framed the following issues:- 1. Whether the defendant no. 1 has committed wilful default in payment of arrears of rent? If so, its effect? 2. Whether the defendant no. 1 has sublet the suit promised to the defendant no. 2 or, whether the defendant no 2 is the tenant of the disputed house by allotment order? 3. To what relief and amount, if any, is the plaintiff entitled?
(3.) IT was held by the trial court that the defendant no. 2 Hukum Chand was occupying the disputed accommodation either as joint tenant or in the alternative as a statutory tenant in his own right by virtue of the allotment order in his favour. He was not the sub-tenant of defen­dant no. 1 and his occupation of the accommodation was lawful, It was also held that there was no wilful default in payment of arrears of rent either from defendant no. 1 or defendant no. 2. It was the plaintiff herself who unjustfiably refused to receive the rent inspite of the lawful tender by defendants nos. 1 and 2. The trial court, therefore, refused the decree for the possession of the suit accommodation and the claim for mesne profits. The claim for arrears of rent due with effect from 1st December, 1964 till the date of the filing of the suit at a monthly rent or Rs. 17/- was decreed. The plaintiff felt aggrieved and filed an appeal in the lower appellate court. The lower appellate court also affirmed the findings recorded by the trial court and dismissed the appeal. The plaintiff has now come up in the instant second appeal.;