Rakesh Sharma, J. - (1.) HEARD Sri P. L. Misra and Sri Z. Jilani, learned counsel for the appellants and Sri Mohd. Arif Khan, learned senior advocate appearing for the respondents.
(2.) THE second civil appeal has been filed against the judgment and decree dated 29.9.1978, passed by Ist Additional District Judge, Bahraich in Civil Appeal No. 110 of 1972, Azhar Hussain and others v. Shiv Prasad, setting aside the judgment and decree passed by the Munsif, Bahraich in Regular Suit No. 371 of 1971, Shiv Prasad v. Azhar Husain and others. THE finding dated 28.3.1978 recorded by the Ist Additional Munsif, Bahraich on issue No. 4 was confirmed by the first appellate court. The following substantial questions of law were framed by this Court on 22.8.1979 while admitting the appeal : (1) Whether the lower appellate court was justified in rejecting the plaintiff's evidence merely on the ground that the details of the origin of relationship of landlord and tenant were not given in the plaint? (2) Whether the suit for eviction should not have been decreed on the ground of title in the alternative? Brief facts of the case are as follows : A Regular Suit No. 371 of 1971, was brought before the Court of Munsif, Bahraich by one Sri Shiv Prasad (now dead and being represented by his legal heirs, who are appellants in this case) for ejectment of the respondent-tenants. Sri Shiv Prasad had alleged in the suit that he was the owner of the house in dispute. This house was let out about twenty years ago (to be counted from the date of suit) to one Athar Husain, father of respondent-tenants at a monthly rent of Rs. 6. The tenancy was from month to month. Athar Husain was in possession of the house as tenant till his death and he was paying rent regularly to Shiv Prasad. After the death of Athar Husain, the defendants-respondents became the tenants of plaintiff Shiv Prasad. The respondents stopped paying rent to the landlord. They defaulted in making payment of rent with effect from 1.4.1969 to 4.9.1970. After serving a notice under Section 106, Transfer of Property Act, on the defendants demanding the arrears of rent and terminating their tenancy, the suit was filed. The defendant-respondent contested the suit and filed their written statement, inter alia submitting that they had been in possession of the house for the last twenty-five years ; there was no relationship of landlord and tenant between the parties and the rights of the plaintiff, if any, stood extinguished by virtue of adverse possession.
(3.) ON the pleadings of the parties, three issues were framed by the learned trial court as below : 1. Whether relationship of landlord and tenant exists between parties? 2. Whether any valid notice was served? 3. To what relief, if any, is the plaintiff entitled? On issue No. 1, the learned Munsif held that the defendants were tenants of the plaintiff at monthly rent of Rs. 6 and they did not pay rent since 1.4.1969. On issue No. 2, it was held that the notice served on the defendants was valid. In view of findings recorded on issues No. 1 and 2, the suit for ejectment and arrears of rent was decreed. Against the said judgment and decree, the defendants filed an appeal which was allowed vide judgment and order dated 30.3.1974 and the matter was remanded to the trial court for further trial according to law. Against the said judgment and decree of the appellate court, the plaintiff preferred an appeal before this Court which was allowed on 22.7.1977 and the judgment and decree of the lower appellate court dated 30.3.1974 was set aside. The lower appellate court was directed to frame necessary issue as regards the origin of tenancy of defendants and remit it to the trial court for giving its finding thereon after giving opportunity to either party to adduce evidence under Order XLI, Rule 25, C.P.C. a?d then decide the appeal. As directed by this Court, the lower appellate court framed the following issue and referred it to the trial court for giving its finding : "When the tenancy between the parties originated? Whether any relationship of landlord and tenant existed between the plaintiff's father and the defendants' father? If so, its effect?";