After death of defendant no legal representative impleaded.

The second defendant in the suit is the appellant herein. The first respondent herein has filed the suit O.S. No. 2043 of 1982 against the appellant and respondents 2 to 5 herein. The trial court decreed the suit and the appeal preferred by the appellant herein was dismissed by the first appellate Court, hence the present second appeal.

2. At the time of admission, the following substantial questions of law are framed for consideration in this second appeal.

i) Whether the Courts below are right in holding that the legal heirs of the deceased second defendant in the suit are not necessary parties, while holding the second defendant as the tenant under the 1st respondent/Plaintiff.

ii) Whether the courts below erred in Law in not holding that the suit stands abated for not bringing the legal representatives of the deceased second defendant in the suit, who according to the 1st respondent/plaintiff is the tenant?

iii) Whether the courts below erred in law in not applying the doctrine of acquiescence when the appellant paid rent from 13-11-1974 and thereby holding that the appellant has become a tenant under the 1st respondent?

iv) Whether the courts below are right in giving a finding that the rent is Rs.330/- per month when the reasonable rent is only the existing rent of Rs.230/- per month?

3. The case of the Plaintiff/first respondent herein is as follows:-

The Plaintiff is the owner of the suit property and the first defendant is a lessee in respect of the suit property from 01-01-1975 for a monthly rent of Rs.210/-. On 09-04-1975, the Plaintiff and first defendant entered into a lease agreement for a monthly rent of Rs.210/-. The rent was enhanced to Rs.330/- from 01-05-1977 which was also agreed by the first defendant. Contrary to the agreement, the first defendant has sublet the premises to Defendants 2 to 5. Due to misunderstanding, the first defendant gave complaint against the defendants 2 to 5 and then only the Plaintiff came to know the sublet and they have terminated the lease agreement on 05-06-1982. According to the Plaintiff, if there is any agreement between the first defendant and defendants 2 to 5 in respect of the property it would not bind them. As on 31-08-1981 the first defendant is liable to pay a sum of Rs.7,370/- towards rent, hence the suit.

4. The case of the appellant is as follows:-

The appellant's father took the vacant land of the suit property on lease and constructed the shop building thereon. Plaintiff Devasthanam had taken a decision not to let out its properties to other religious persons; that the suit property was leased out in the name of the first defendant as requested by appellant's father. The letter dated 13-11-1974 of the first defendant would prove it. The defendants 3 to 5 are partners of appellant's father. The rent for the demised premises was Rs.210/- and rent was paid for the entire period without any default. The suit ought to have been dismissed by the courts below for non-joinder of legal representatives of the first defendant and other representatives of appellant's father T.S. Abdul Jabbar. After the death of appellant's father, the appellant and his brother have been carrying on the business with the knowledge of the Devasthanam.

5. Before the trial court, the Plaintiff has examined one Subramaniam as PW1 and marked Exs. A1 to A11. The 2nd Defendant/appellant herein has examined himself as DW1 and marked Exs. B1 to B63. Before the trial court, the defendants 3 to 5 were set exparte and the second defendant alone contested the suit.

6. The learned counsel appearing for the appellant submitted that the courts below erred in shifting the burden on the appellant to prove the quantum of rent at Rs.330/- per month; that the courts below have not taken into account that PW1 is not aware of anything as such he is not competent to speak about the case. The courts below failed to consider Exs. A1 and A7, B1 and B2 in proper perspective; that the courts below have erroneously cons