Judgment

DESAI, J.:- Two tenants Kaloo and Chet Narain occupying two different portions of a building belonging to respondent Gauri Shankar are the appellants in these two appeals involving a common question of law. A few facts shedding light on the question of law may be stated.

2. One Brij Mohan was the owner of a building. Brij Mohan sold the building to one Shital and Gauri Devi. Respondent Gauri Shankar and his cousin Sheo Narain purchased the building from Shital and Gauri Devi by a registered sale deed dated July 29, 1965. There is some dispute as to whether both of them jointly purchased the whole property or by a single sale deed each of them purchased separate and specified portion of the same building and this controversy has led to some confusion in these proceedings.

CA No. 813/80 :

3. Bhola was inducted as a tenant, in a shop forming part of this building. Appellant Kaloo (CA 813/80) and one Hira Lal, brothers of Bhola, according to them, were staying with Bhola in his lifetime and on death of Bhola in Aug., 1966 they inherited the tenancy rights in respect of the shop. Respondent landlord Gauri Shankar served notice dated Dec. 22, 1965 (Ext. 9) upon Bhola alleging that he has been a tenant of the shop on a monthly rent of Rs. 10/- and that he has been in arrears from September 1, 1964. Bhola sent reply Ext. 10 to the notice (Ext. 9) specifically stating that he was not in arrears of rent from Sept. 1, 1964, and that he had tendered the rent by Money Order dated September 28, 1965, which has been accepted by respondent Gauri Shankar. Simultaneously Bhola remitted rent by Money Order (Ext. A-11) dated January 18, 1966, describing the payee as Gauri Shankar wali Sheo Narain. This money order was refused by respondent Gauri Shankar. In the reply to the notice Bhola had stated that Gauri Shankar alone could not serve notice because the property in question was jointly purchased by Gauri Shankar and Sheo Narain. It is this plea of Bhola which possibly induced him to send the money-order as hereinabove described. Respondent, after obtaining necessary permission from the District Magistrate, filed a suit for eviction on the ground mentioned in Section 3 (1) (a) of the U. P. (Temporary) Control of Rent and Eviction Act, 1947 (1947 Act for short) alleging that tenant Bhola was in arrears of rent for more than three months and has failed to pay the same to the landlord within one month from the date of service upon him of the notice. When the matter was pending before the Commissioner in revision under Section 3 (2) and (3) of 1947 Act at the instance of the landlord against the order of District Magistrate refusing permission to file the suit under Section 3 (2) of the 1947 Act, Bhola died and appellant Kaloo and his brother Hira Lal were substituted as his legal representatives by the respondent. The permission being granted, the suit for eviction was filed against Kaloo and his brother Hira Lal. Even though respondent Gauri Shankar treated Kaloo and Hira Lal as having inherited tenancy right of Bhola, it was alleged in the plaint that the appellant Kaloo and his brother Hira Lal were trespassers as they had forcibly taken over possession of the shop after it was released in favour of the respondent. A self contradictory stand was taken in the plaint describing Kaloo and his brother as trespassers and in any case as Bhola having defaulted in payment of rent and his tenancy was terminated the same could not have devolved on his legal representatives namely, Kaloo and Hira Lal, and, therefore, also they were trespassers. As a third alternative it was stated that as Bhola had not paid the rent as required by law, appellants Kaloo and Hira Lal were not entitled to the protection of the 1947 Act and, therefore, also the respondent landlord was entitled to evict them and obtain possession.

C. A. No. 1278/79 :

4. In this connected appeal it was alleged by the respondent in the plaint that the appellant Chet Narain was a tenant on a m