V.K. Mehrotra, J. - (1.) ZAHIR Ahmad, who is the Petitioner in this petition Under Article 226 of the Constitution, was let into possession of a Phatak by Suraj Narain Rai the second Respondent. The Phatak was part of a property which belonged to one Roop Chand. After the death of Roop Chand his four daughters, namely, Kamla, Bimla, Urmila and Nirmala inherited the property in equal share. Smt. Kamla transferred her l/4th share to one Smt. Raskhe Jahan. She, in her turn, sold it to Suraj Narain Rai on August 24, 1967 according to the case of Suraj Narain Rai in this Court. The remaining 3/4th share in the property was sold to Petitioner Zahir Ahmad by the other three daughters through a sale deed of July 4, 1974.
(2.) SURAJ Narain Rai demanded rent from Petitioner Zahir Ahmad who, according to Suraj Narain Rai, had fallen in arrears in that regard. When Zahir Ahmad did not make the payment, a suit (No. 262 of 1976) was filed by Suraj Narain Rai in the Court of Judge, Small Causes, Meerut for its recovery. The suit was resisted by Zahir Ahmad who said that being a co -sharer of the property he was not liable to pay any amount by way of rent to Suraj Narain Rai. Plaintiff Suraj Narain Rai and the Defendant -Petitioner Zahir Ahmad both entered the witnesses box. Some documentary evidence was also filed by the parties. On February 24, 1977 the Judge, Small Cause Court, Meerut decided the case. He dismissed the suit. The learned Judge observed that it was not disputed by the Plaintiff that he had only l/4th share in the property as 3/4th share was purchased by the Defendant. Further, that the Plaintiff had filed a suit for partition of his l/4th share which had been decreed and a preliminary decree had been passed. The final decree was yet to follow. The learned Judge then proceeded to observe: Due to the fact that rights of the parties have been settled in a regular suit and it has been held that the Plaintiff has got only l/4th share, I do not think it expedient in the interest of justice that the Plaintiff should be allowed to recover rent from the Defendant of any specific portion which has not yet vested in him by final decree. Both parties are co -sharers and their rights have also been decided by the regular court. In view of the decision of the regular court for partition of the property in question the present suit is not maintainable.
(3.) PLAINTIFF Suraj Narain Rai challenged the above decision by filing a revision Under Section 25 of the Provincial Small Cause Courts Act. One of the objections raised by him in the memorandum of revision was that the Defendant was estopped from challenging the right of the Plaintiff to recover rent inasmuch as it was proved from oral and documentary evidence that the disputed Phatak had been let out to him by the Plaintiff. Another ground was that by the purchase of some share by the Defendant no merger of ownership rights took place as far as the Defendant was concerned and that he was liable to pay rent to the Plaintiff as the relationship of tenant and landlord subsisted between them.;