R.P. Singh, J. - (1.) BY means of this writ petition, under Article 226 of the Constitution, the petitioner has challenged the order passed by the IXth Additional District Judge, Allahabad, dated May 30, 1988, allowing the revision after setting aside the decree passed by the Judge, Small Causes Court and remanding the case back to him to decide the case afresh in accordance with law. Brief facts of the case are that the petitioner filed a suit for ejectment and arrears of rent against the respondent No. 3 Lallu Lal, alleging that the petitioner is the landlord of the disputed accommodation i.e. a portion of house No. 38, Khuldabad, Allahabad on a rent of Rs. 10.00 per month of which the petitioner is the landlord and owner and that the defendant fell in arrears of rent since November 1, 1973 and when inspite of service of demand and notice to quit, the defendant failed to pay the arrears of rent, the defendant is the defaulter in payment of rent and hence liable to ejectment.
(2.) THE respondent No. 3 Lallu Lal contested the suit on the ground that there was no relationship of landlord and tenant between the parties and the house in question was owned by the father of the parties Kishori Lal and on his death, it was inherited by the parties as his heirs and since defendant is not the tenant of the disputed accommodation and hence the suit is liable to be dismissed. The Judge, Small Causes Court on consideration of the entire evidence on record held that the respondent No. 3 had already executed a registered deed of relinquishment dated September 8, 1971 by which he had relinquished his rights and title of the house in dispute in favour of the petitioner. Further Kishori Lal the father of the parties had already executed a registered will which was duly proved showing that he bequeathed the house in dispute in favour of the petitioner Ram Chandra. In the will itself it was stated that the respondent No. 3 Lallu Lal shall continue to remain in occupation of the portion of the house in dispute, on a rent of Rs. 10.00 per month and in case he fails to pay rent -due, he shall be liable to ejectment therefrom. The Judge, Small Causes Court also relying on an allotment order produced by the plaintiff showing that the portion of the house in dispute was allotted to Lallu Lal the respondent No. 3 on January 12, 1961 held the relationship of the landlord and tenant is duly established between the parties and further finding that the respondent No. 3 having failed to pay the arrears of rent inspite of due service of notice of demand on him, decreed the suit for ejectment and arrears. Feeling aggrieved, the respondent No. 3 went up in revision before the IXth Additional District Judge, Allahabad who on reappraisal of the evidence, held that no relationship of landlord and tenant is established between the parties and sent back the case to the Judge, Small Causes Court to decide the case afresh in accordance with law which order is in challenge in the present writ petition.
(3.) HEARD Sri Yogesh Agarwal learned counsel for the petitioner and Sri V.N. Agarwal learned counsel for the respondent.;