JAIN, J.—This is a second appeal by the defendant, Mool Chand, against whom a decree for Rs. 1200/- as arrears of rent and for ejectment from the suit premises was passed by the Civil Judge Jaipur City and upheld in appeal by the District Judge Jaipur City.

2. Mool Chand defendant is the owner of the house F-150 in residency area of the C-scheme, Jaipur. He mortgaged this house with possession by a registered mortgage deed dated 12-9-56 with Prasad Dass Banerjee for a sum of Rs. 15999/-. By a separate document of the same date Mool Chand was accepted as a tenant on a portion of the said house. The defendant thus continued to be in possession of that part of the house. A rent note (Ex. 1) was executed and the mortgagor agreed to part of the house. Mool Chand paid the rent the rent note Ex. 1 the period of tenancy was also agreed that if the rent was not paid for a period of four months, the mortgagor will be liable to be evicted from the suit premises. Prasad Dass died intestate and without leaving an issue on 4-4-57. Mool Chand having not paid the rent after 15-11-66, Narain Dass served him with a notice asking him to quit house by 12-11-57. Mool Chand did not vacate the suit house and, therefore, Narain Dass instituted the suit out of which this appeal has arisen, on 23-12-57 in the court of Civil Judge Jaipur City. He claimed Rs. 1200/- as arrears of rent and mesne profits at the rate of Rs. 93/- p.m. from 12-11-56 to 12-12-57 and the eviction of the defendant on the ground of default from the suit house.

3. The suit was resisted by Mool Chand. He admitted the mortgage and having executed the rent note. His plea, however, was that on 13.1-57 he paid an amount of Rs. 11000/- towards the principal amount of the mortgage and Rs. 166/- towards rent for two months due from him. He also produced agreement Ex. A. 1 and receipt Ex. A. 2 alleging that they were executed by Prasad Dass. On the basis pay Rs. 93/- p.m. as rent for the said for two months, upto 12-11-56. By fixed for a period of one year. It was of these two documents it was alleged that Prasad Dass agreed not to charge rent for the suit house in future. It was, however, admitted that the only amount payable by him towards the mortgage money is the sum of Rs. 4999. Another plea, raised by him was that Prasad Dass having died Narain Dass alone was not entitled to maintain the suit.

4. The learned Civil Judge who tried this suit did not accept the defendants case that he paid the amount of Rs. 11000/- and Rs. 166/- towards rent and that Prasad Dass had agreed not to charge any rent after 13-1-57. As for the plea regarding the maintainability of the suit he held that Narain Dass was the sole heir of Prasad Dass by survivorship. According to the learned Judge Bunkim Chandra and Arun Gopal, though real brothers of Prasad Dass, were living separately and as such had no right in the suit property. And that apart the relinquishment deed Ex. 5 having been executed by them on 7-1-60, the defect in the suit, if any, stands removed. The plaintiffs suit was accordingly decreed in full on 3-1-1961.

5. Being aggrieved of this decree, defendant preferred an appeal. The learned District Judge Jaipur City agreed with the conclusions arrived at by the learned trial Judge on both the points. The defendants appeal was dismissed vide his judgment dated 6-8-66. It is this decree which is subject matter of challenge before me in second appeal. It may be mentioned here that Narain Dass plaintiff died during the pendency of the first appeal. His legal representatives were brought on record and they were respondents before the first appellate court and are likewise here.

6. On behalf of the appellant it has been strenuously urged that by the documentary evidence payment of Rs. 11000/- towards mortgage amount is fully established and the agreement Ex. A. 1 along with the receipt Ex. A. 2 having been proved to the hilt, the conclusion drawn by the courts below, is not only erroneous, but perverse. On the

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