HANUMAN PRASAD CHOWKHANI AND ANOTHER Vs. DEVENDRA CHANDRA PAUL AND OTHERS

JUDGEMENT

(1.) TITLE Suit No. 57 of 1964 filed by Hanuman Prasad Chowkhani and his mother Saraswati Devi Chowkhani against Devendra Chandra Paul Sonari, Ananta Paul Sonari and Birendra Paul Sonari for khas possession of a house by ejecting the defendants and for recovery of Rs. 405/ - on account of arrears of rent and compensation, was decreed by the Munsiff, Dibrugarh, by his judgment dated 29th September, 1966. An appeal filed by the three defendants against the decree of the trial Court was allowed by the Assistant District Judge, Dibrugarh on 25th September, 1967, and the suit of the plaintiffs was dismissed with costs.

(2.) THE plaintiffs thereupon filed the present second appeal in this court on 19th December, 1967. The respondent No. 2, Ananta Kumar Paul, died sometime in November, 1970, and the application made by the appellants for bringing his legal representatives on the record on setting aside the abatement was dismissed on 9 -6 -72. On the same date it was directed that the appeal should be fixed for determining whether it could proceed against respondents Nos. 1 and 3 and this order will decide that question.

(3.) THE trial Court settled as many as seven issues between the parties but it failed to frame any specific issue arising out of the plaintiffs' allegations (which were denied by the defendants) that the house had been let out only to defendant No. 1 and that the latter had sub -leased it to defendants 2 and 3. While discussing the validity of the amount deposited by Devendra Paul and Ananta Paul to the credit of the plaintiffs on account of rent, the trial Court held that Ananta Paul is a stranger vis -a -vis the plaintiffs and as such that deposit did not discharge the obligation of defendant No. 1 Devendra Paul as a tenant of the plaintiffs. All the issues settled between the parties were decided by the trial Court in favour of the plaintiffs with the consequence that the suit was decreed with costs. The Assistant District Judge negatived the finding of the trial Court that Ananta Paul is a stranger to the plaintiffs respecting the house in dispute. In the opinion of the Assistant District Judge the pleadings of the plaintiffs when read together with the Court statement of plaintiff No. 1 brought out that it had been admitted by the plaintiffs that Ananta Paul was also their tenant. The finding of the trial Court that there had been default in the matter of payment of rent was also reversed by the Assistant District Judge with the result that the decree of the trial Court was set aside and the suit of the plaintiffs dismissed.