Shobha Dikshit, J. - (1.) This writ petition is directed against the judgment and order dated 19.5.1994 passed by the VIth Additional District Judge, Lucknow in S.C.C. Revision No. 25 of 1994 by which the revision preferred by opposite party No. 2 has been allowed reversing the judgment and order dated 13.12.1993 passed by the Judge, Small Cause Court.
(2.) The relevant facts for the purpose of disposal of the present writ petition in brief are the opposite party No. 2 filed a suit for a decree for ejectment of the defendant from the premises in question as also a decree for arrears of rent together with pendente lite and future interest on the ground that the petitioner-defendant was the tenant of the said premises whereby the rent was fixed at Rs. 25/- per month. The tenancy was from month to month beginning from the first day of each month. The defendant was irregular in payment of rent and did not pay the same in spite of repeated demands from 1.4.1975 onwards. The plaintiff, therefore, sent a notice dated 1.2.1977 demanding the payment of arrears of rent within one month of the receipt of the notice and by the same notice, the plaintiff also terminated the tenancy of the defendant asking him to vacate the premises immediately on the expiry of 30 days from the date of receipt of the said notice. According to the plaintiff, the said notice was served on the defendant by refusal on 9.2.1977 but when neither the arrears of rent as claimed were paid to the plaintiff nor the premises were vacated, the said suit has been filed. The suit was resisted and a written statement was filed by the said defendant Abdul Hameed. He admitted that the landlord-tenant relationship between him and the deceased, father of the plaintiff. It was further pleaded in the written statement that late Chaudhary Ahmad Khan was the owner-landlord of the house in dispute and he was realising the rent from the defendant initially at the rate of Rs. 6/- per month which was later on increased to Rs. 10/- per month. The said Chaudhary Ahmad Khan died on 28.9.1970 leaving behind his widow and four sons including the plaintiff as legal heirs and the co-landlords of the premises in dispute. The defendant, therefore, continued to pay the rent regularly to the plaintiff and to his other brothers and mother from time to time on behalf of all the co-sharers. No receipt was ever issued in favour of the tenant by any of the said co-sharers. The service of notice was denied and collusion with the postman was alleged. As per the written statement, the rent at the rate of Rs. 10/- stood paid up to 30.11.1977 and rent since 1.12.1977 to 30.4.1979 also stood paid. It was specifically pleaded that the plaintiff is not the sole landlord, as such the suit is bad for non joinder of necessary parties. The parties entered into witness-box and the plaintiff deposed that after the death of his father on 28.9.1977, there was a family settlement between the plaintiff and his brothers and legal heirs on 20.5.1973 and the disputed house fell into the share of the plaintiff. He, however, admitted that no receipt was ever issued by him but he used to record the receipt in the diary maintained by the tenant. The defendant also deposed before the learned trial Court where he denied the partition between the legal heirs of Chaudhary Ahmad Khan or its knowledge to him. He also denied the allegation of payment of rent at the rate of Rs. 25/- per month and the service of notice on him. The trial Court on the pleadings of the parties, framed the following 5 issues : 1. What is the rate of rent? 2. Whether the demand and ejectment notice was served upon the defendant? 3. Whether the defendant has committed default in payment of rent under Section 20 of U.P. Act, 13 of 1972? 4. What is the arrears of rent? 5. Whether the plaintiff is the sole landlord?
(3.) The Judge, Small Cause Court partly decreed the suit vide judgment and order dated 15.9.1981 and it allowed the decree for arrears of rent only from 1.4.1975 at the rate of Rs. 10/- per month and dismissed the same for ejectment. On issue No.1, the trial Court found the monthly rent to be Rs. 10/- and not Rs. 25/- as alleged, and on Issue No.2 that the defendant (tenant) did not refuse to accept the service of the notice of demand and ejectment. On the allegation that the rent is due from 1.4.1975, the trial Court accepted the same and found the defendant a defaulter. The issue as to whether the plaintiff is sole owner/landlord and can recover the rent, the learned Court came to the conclusion that the plaintiff is the sole landlord. On these findings, the suit was partly decreed for recovery of arrears of rent from 1.4.1975 up-to-date at the rate of Rs. 10/- per month by the aforesaid judgment but because of the finding that the notice for demand and ejectment was not served on the defendant, the suit for ejectment was dismissed.;