A tenant is not entitled to protection under section 12(3)(b) of the Bombay Rent Act if he fails to deposit the rent on the first day of hearing and continues to default, and is not protected under section 50 of the Transfer of Property Act if he had reason to believe that the transfer had taken place.

JUDGMENT - R.D. TULPULE, J.:---Regular Civil Suit No. 87/70 was filed by minor Ajit through his guardian and next friend, father Sobhiraj against his two brothers Shantinath and Duryodhan.

2. House No. 227 situate at Jaysingpur, originally belonged to four brothers, Shantinath, Duryodhan (defendant Nos. 1 and 2), Ajit and one Gajanand. They effected a partition of this property in the year 1951 by which, each of them was given a block or portion along with the open space behind it. House No. 227 consisted of a building in the front portion and open space in the rear. Different sub-numbers were given to the portions to be shared between the brothers and the portion which went to the share of Duryodhan was allotted Block No. 227/4.

3. Part of this rear portion of the block was leased by defendant Duryodhan to his brother Shantinath. That was given to him for the purposes of construction of a shed and running a flour mill. He was also permitted it appears to construct a privy block therein. In a suit filed by defendant No. 2. Duryodhan against Shantinath, the rent of this property was fixed at Rs. 50/- per year.

4. On 21-10-67, defendant No. 2. Duryodhan sold this open portion of his house Block No. 227/4 to Ajit the son of Nabhiraj. On 8-6-70, a notice was issued from Ajit to Shantinath calling upon him to pay the rent which was in arrears from 22-11-67, in the date of purchase, and on the ground that the landlord required these premises bona fide for construction of a new house. It was contended that what was leased being land, the landlord wanted to construct a new building thereon and, therefore, wanted possession of the premises. It was also contended that defendant Shantinath was in arrears of rent right from the date of purchase.

5. By his reply, Shantinath denied that Ajit was a purchaser. He also claimed that the rent was Rs. 50/- per year only and that, he had spent a considerable amount of about Rs. 8000/- on construction of a shed and the privy block. It was his further contention that under an agreement between himself and defendant No. 1 the original landlord, Duryodhan would have possession of the premises to be handed over or recovered by the lessor, the lessee was to be reimbursed for the expenses incurred by him. He, therefore, contended that unless that amount is paid to him, he is not liable to be evicted. He also contended that all the rent upto date had been paid to the lessor Duryodhan. He also raised contentions in regard to the legality and validity of the sale deed.

6. Ajit through his father guardian and next friend then filed a suit being Civil Suit No. 87/70 for possession against Shantinath and Duryodhan. Though Duryodhan was not a necessary party in the suit filed under the provisions of the Bombay Rent Act on account of the contentions raised by Shantinath an account of the transaction of the sale he was so joined.

7. In his written statement, Duryodhan the vendor contended that the sale deed was brought about by misrepresentation and fraud and was void. According to him, no consideration was paid to him. Therefore, his contention was that, title had not passed. He executed this document on account of misrepresentation made by Nabhiraj. That rent had been recovered by him for all the years till the date of the suit it also admitted in the agreement set up by Shantinath between and the lessor.

8. The trial Court dismissed the suit. It held that the plaintiff had not proved his title and the transaction did not relate to the land in question. He also found that the payment was made by defendant No. 1 to defendant No. 2. With regard to the plaintiffs contention that he required the premises bona fide for erecting a new construction, he did not record a finding and held in the alternative against the plaintiff.

9. Aggrieved by that decision, the plaintiff Ajit preferred an appeal in the Court of the District Judge, Kolhapur. The learned Assistant Judge who heard that appeal held that the plaintiff had pro

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