A.N.Varma - (1.) THIS is a plaintiffs' second appeal arising out of a suit for ejectment and arrears of rent and damages. The trial court decreed the suit, but on appeal by the defendants the suit was dismissed by the lower appellate court.
(2.) THE facts giving rise to this appeal are these : One Shital Prasad was admittedly the owner of the disputed house. Parmanand Singh was its tenant. THE plaintiff appellants claiming to be the sous of the sister of Shital Prasad instituted the present suit no. 417 of 1972 on 4-11-1972 for the ejectment and recovery of arrears of rent etc. against Parmanand Singh. THE allegations in the plaint were that Shital Prasad their maternal uncle had determined the tenancy of Parmanand by means of a notice dated 26-6-1972. Shital Prasad, however, died according to the plaintiffs on 6-7-1972 whereupon the plaintiff appellants sent another notice dated 26-9-1972 determining the tenancy of Parmanand Singh. Parmanand having failed to vacate the house, the present suit was brought for the reliefs mentioned above. After the institution of the suit, Parmanand is stated to have vacated the house and handed over possession to Harakh alias Ram Harakh on 7-1-1972. Accordingly, he was also impleaded as a defendant in the suit. Consequential amendments were made in the plaint. During the pendency of the suit Harakh died and his legal representatives were brought on the record. The suit was contested by the heirs and legal representatives of Harakh and Parmanand Singh. These contesting defendants denied the relationship between the plaintiff appellants and Shital Prasad. It was asserted that the plaintiffs were not the sister's son of Shital Prasad. They claimed that Harakh was the husband of the sister of Shital Prasad who died in the month of April 1972. They also denied that Shital Prasad had issued any notice under Section 106 of the Transfer of Property Act. Their defence further was that Parmanand Singh was paying rent to Harakh and had later delivered possession to him on 1-10-1972. The contesting defendants were thus in possession after 1-10-1972 as the rightful owners of the property being the heirs of Shital Prasad. On a consideration of the evidence on the record the trial court decreed the suit holding that the plaintiffs and not the legal representatives of Harakh were the heirs of Shital Prasad and that the tenancy of Parmanand Singh having been duly determined the suit was liable to be decreed for ejectment as well as for arrears of rent etc.
(3.) ON appeal by the defendants (other than Parmanand Singh), the lower appellate court reversed the decree of the trial court and the findings on which the same was based and dismissed the suit. Three questions were formulated by the lower appellate court for its decision. These were : (1) Whether the court below had no jurisdiction to try the suit ? (2) Whether the plaintiff respondents nos. 1 to 4 are the sister's sons of late Shital Prasad ? Either way its effect ? (3) Whether the tenancy of the defendant respondent no. 5 Parmanand Singh was validly determined under Section 106 of the Transfer of Property Act ? The first question was answered by the lower appellate court in favour of the plaintiffs and inasmuch as finding was not assailed before me by the defendant respondents, I am not commenting on the same. I, however, perused the finding and am of the opinion that the conclusion reached by the lower appellate court is correct.;