I.M.QUDDUSI, J. - (1.) THESE are two writ petitions one has been filed by the tenant and the other one by the landlord. In writ petition No. 18169 of 1993which has been filed by Gajadhar Prasad who is a tenant of one accommodation of House No. M-79, Mohalla Mainatali, Mughald Sarai, district Varanasi has challenged the judgment and order dated 29.4.1993 passed by Vth Additional District Judge, Varanasi in Rent Revision No. 106 of 1991, under Section 25 of the Small Causes Courts Act by means of which while setting aside the judgment and decree passed by the trial Court the learned revisional Court has passed the decree of eviction along with the recovery of Rs. 315/- with proportionate cost, while in other writ petition No. 26165 filed by Lallan Prasad landlord of the aforesaid premises prayed for quashing of the judgment and decree passed by the learned revisional court as well as the trial Court. In so far as the finding on Issue No. 1 i.e. the rate of rent per month is concerned only with a subsequent prayer to decree the suit of the petitioner in respect of the same at the rate of Rs. 80/- per month.
(2.) SINCE both the aforesaid writ petitions arose out of the same matter, the same are being disposed of by a common judgment. Brief facts of the case are that Gajadhar Prasad the petitioner of writ petition No. 18169 of 1993 is a tenant in House No. M-79, Mainatali, Mughal Sarai, district Varanasi. Vide sale deed dated 16.8.1985 the earlier landlord Jawahar Lal sold out the western portion of the premises in dispute to respondent No. 3 Lallan Prasad. At that time there were number of tenants living in the premises namely House No. M-79, Mohalla Mainatali, Mughal Sarai, district Varanasi. In the sale deed it was indicated that the tenants namely Rajendra Prasad son of Lallan, Chhotey Lal son of Shobh Nath, Ramji son of Baijnath, Gajadhar son of Kedar, Kesra Devi, Mohan Machhalli and Luxmi Devi were living as tenants. The right of lease was also shown therein. The rate of rent of Gajadhar Prasad, the petitioner in the writ petition No. 18169 of 1993 was shown as Rs. 80/- per month in the sale deed and the due rent has been shown with effect from January, 1983. It was also indicated that the purchaser is authorised to recover his arrears of rent from the tenants and issue receipts, may issue notice and file legal proceedings for eviction and engage counsel for filing of an appeal or revision in the High Court, receive money, deposit money etc. and may take all action as and when necessary and all this will have been done on behalf of the seller and nobody would be liable to object. Although the copy of power of attorney has been filed but the copy of the sale deed has not been filed by the parties. Thereafter the respondent No. 3 sent a notice dated 9.12.1985 to the petitioner through counsel in which it was indicated that the rent has also been paid when the respondent No. 3 purchased the house from Jawahar Lal and the amount which was due was shown with effect from January, 1983 at the rate of Rs. 80/- per month but in the reply to the notice so given it was denied that the rate of rent was Rs. 80/- but admitted that the same was Rs. 35/- per month. It was also indicated that the rent was due from July, 1985 and the rent from July to December, 1985 was being sent by money order. Thereafter a suit was filed in the court of Judge Small Causes which was registered as S.C. Case No. 125 of 1996 Lallan Prasad v. Gajadhar Prasad. The learned Judge Small Causes Court framed three issues namely (i) whether the rate of rent of the premises in dispute is Rs. 80/- per month ? (ii) whether the notice is legal ? (iii) whether the defendant has committed default in making payment of rent and its effect ? (iv) relief.
(3.) WITH regard to issue No. 1 the learned trial Court has decided that the rate of rent was Rs. 35/- and the plaintiff could not prove that the rate of rent was Rs. 80/- and with regard to the dues with effect from January, 1983 up to 9.12.1985 the trial Court has held that the notice should have been given by the old owner but no such notice has been given. With regard to issue No. 2 the learned trial Court has held that the notice was given for recovery of rent by the new owner Lallan Prasad on 9.12.1985 while in fact he become owner of the premises in question on 16.8.1985 by virtue of a sale deed and at that time four months rent was not due for payment to the new owner. The period of four months was going to be calculated on 16.12.1985 and thereafter only the notice could be given; hence the notice given to the defendant was pre-mature one. With regard to issue No. 3 it was held that no rent was due till the month of June, 1985 but thereafter, the defendant had committed default but he has deposited rent under Section 30(1) in the Court of Munsif under the U.P. Act No. 13 of 1972 and deposited the tender receipts and hence the notice which was given for the period prior to the purchase of the house was illegal and with regard to from the date of purchase it was premature as four months were not completed from the date of notice and hence he cannot be evicted on that basis. It was further held that the defendant deposited Rs. 620/- as arrears of rent while due rent comes to Rs. 735/- up to the date of institution of the suit hence the plaintiff is entitled to get Rs. 150/- from the defendant.;