Yashoda Nandan, J. - (1.) THESE are two connected second appeals arising out of the same suit which can be conveniently disposed of by a common judgment. Second Appeal No. 1661 of 1970 has been preferred by the plaintiff in the suit while the connected Second Appeal No. 1676 of 1970 is at the instance of Sheel Chandra Agrawal who figured as defendant No. 1 therein.
(2.) THE suit giving rise to these appeals was for ejectment of Sheel Chandra Agrawal (impleaded as defendant No. 1), from certain premises and for recovery of arrears of rent and damages for use and occupation pendente lite and future. THE suit was brought on the allegations that the plaintiff was a tenant of an accommodation consisting of a quarter No. 1/3 and three shops in a building situate at Rampur. According to him, he had sub-let two of the shops in his tenancy to late Sri Chandra Bhan, father of four of the defendants and husband of the fifth defendant in 1945. Subsequently a dispute arose between the plaintiff and Sri Chandra Bhan with regard to the rent, with the result that he was compelled to file Suit No. 457 of 1959 for ejectment of Sri Chandra Bhan and for arrears of rent in respect of both the shops in his sub-tenancy. THE suit for ejectment was dismissed but claim for arrears of rent was decreed at the rate of Rs. 45 per month which decree was confirmed in appeal on the 14th December, 1961. Subsequently on the 20th Jan. 1962, Sri Chandra Bhan admittedly died and according to the plaintiff his son Sheel Chandra Agrawal who alone initially was impleaded as defendant took up the business of his father and continued to remain in possession of both the shops as heir of his deceased father on the same terms and conditions as his late father. It was alleged that Sheel Chandra Agrawal also continued to pay rent at the rate of Rs. 45 per month thereby acknowledging him as his landlord. THE rent continued to be paid by Sheel Chandra Agrawal till Dec., 1962 whereafter he ceased to pay any rent. THE plaintiff claimed that he served defendant No. 1 with a registered notice dated 7th June, 1963 demanding rent with effect from 1st Jan., 1963 but under the letter dated 20th June, 1963 he declined to pay any rent and disclosed that he was making payment of rent to the owner of the building and thus denied his title as his landlord. According to the plaint case, Sheel Chandra Agrawal thus forfeited his right to remain in possession as the plaintiff' s sub-tenant. THE plaint case was that consequently the plaintiff again served Sheel Chandra Agrawal with a notice dated 27th March, 1964 demanding arrears of rent with effect from 1st January, 1963 and terminating his tenancy. It was alleged that in spite of receipt of that notice on the 31st March, 1961 Sheel Chandra Agrawal neither paid the arrears of rent nor vacated the shops and instead by his letter dated 27th April, 1964 renounced his character as a sub-tenant and thus forfeited his right to remain in possession. THE plaintiff claimed that Sheel Chandra Agrawal thus became liable to ejectment and to pay arrears of rent and damages from the 1st January, 1963. According to the plaintiff, defendants Nos. 2 to 4, who had been impleaded under orders of the court and were the sons, a daughter, and widow of late Sri Chandra Bhan did not continue in business after the death of their father and so they had no concern with the shops or with the present dispute inasmuch as they did not inherit any interest as heirs of Sri Chandra Bhan. THE plaintiff asserted that, however, since they had been directed to be arrayed as defendants by the court, they were impleaded as pro forma defendants. It may be mentioned here that even after amendment of the plaint, the plaintiff prayed for no reliefs against defendants Nos. 2 to 5 by amending the relief clause. All the defendants resisted the plaintiff' s claim. Defendant No. 1 Sheel Chandra Agrawal put up the defence that after the death of Sri Chandra Bhan sub-tenancy rights could not devolve on him under the law and the same could not be created by agreement since by the time Sri Chandra Bhan died U. P. Act No. III of 1947 had come into force. That being so, defendant No. 1 applied to the Rent Control and Eviction Officer, Rampur, for allotment of the two shops in his favour on the 25th June, 1962. The proceedings were contested by the plaintiff who prayed that both the shops be allotted to him instead. The Rent Control and Eviction Officer, however, allotted the two shops in favour of defendant No. 1 with effect from 20th Jan., 1962 under his order dated 28th Jan., 1963. In view of the order of allotment in his favour, defendant No. 1 started paying rent directly to the owner Sri Ram Prakash since Feb., 1963. Defendant No. 1 pleaded that mere payment of rent for sometime to the plaintiff neither created fresh contract of tenancy nor estopped him from controverting the title and status of the plaintiff. According to defendant No. 1, what ever amount was paid to the plaintiff was mere compensation, licence fee or licence money for use and occupation of the premises in suit and no jural relationship was created between them. It was further pleaded that in any case if there was any sub-lease, it was renounced, undone, abandoned and extinguished on the 26th June, 1962 when he applied for allotment of the premises and the matter was contested by the plaintiff. The order of allotment had subsequently been set aside by the State Government under S. 7-F of U. P. Act No. III of 1947 but the defendant pleaded that the order of the State Government dated 28th Jan., 1963 was without jurisdiction, null and void and not binding on him. Notice of demand and ejectment was also said to be defective and invalid. The earlier notice dated 7th June, 1963 was said to have been waived by the subsequent notice. According to the stand taken by defendant No. 1, the plaintiff, therefore, had no cause of action and the suit was liable to be dismissed with special costs. The remaining defendants by a separate written statement pleaded that after the death of Sri Chandra Bhan all his heirs became tenants and since the tenancy of other tenants was not terminated, the suit was not maintainable. Defendants Nos. 2 to 5 further pleaded that in any event defendant No. 1 became the tenant of the premises under the order of allotment issued by the Rent Control and Eviction Officer and the suit for ejectment was, therefore, not maintainable.
(3.) REPLICATION was filed by the plaintiff reiterating that after the death of Sri Chandra Bhan defendant No. 1 became sub-tenant by operation of law. There was no occasion for allotment of the premises inasmuch as the same had not fallen vacant. Moreover, the allotment order was subsequently cancelled by the State Government and so defendant No. 1 could not take advantage of the allotment in his favour. The plaintiff reasserted his right as tenant-in-chief and to institute the suit for ejectment and arrears of rent and damages. On the pleadings of the parties, the learned Munsif framed a number of issues and held that in view of the statement of the plaintiff before him, Sri Chandra Bhan was a tenant-at-will and as such his sub- tenancy rights, could not devolve on the heirs of Sri Chandra Bhan after his death. He further held that Sri Chandra Bhan having died in January 1962 when U. P. Act No. III of 1947 was in force, a fresh contract of sub-tenancy could not be created without the permission of the landlord and the District Magistrate, with the result that defendant No. 1 could not be deemed to be a sub-tenant. Principle of holding over was also not applicable to the case according to the finding of the trial court as the tenancy of Sri Chandra Bhan extinguished on his death. It was further held that since defendant No. 1 was not a tenant of the plaintiff, the latter could not claim ejectment and arrears of rent even though the order of the State Government cancelling allotment in his favour might be held to be valid and binding on him. In view of the findings recorded, the trial court dismissed the suit with costs to defendant No. 1.;