( 1 ) THIS is a defendant tenants Second Appeal. The plaintiff purchased a house on the 31st of october, 1952 from one Sh. Abdul Karim. At that time the defendants were occupying the house. The plaintiff served a notice in which he stated that the defendants were not tenants and claimed compensation for use and occupation and asked them to vacate the house and in the alternative terminated the tenancy. The defendants sent rent by money-order at Rs. 6/4/- per month from the 1st of November, 1952 till the date of notice. But they did not send rent which was due before the 1st of November, 1952. The plaintiff filed a suit for the ejectment of the defendants and contended that the defendants were occupying the house without any fight and claimed compensation. at Rs. 15/- per month. Defendant No. 1 claimed to be a tenant and alleged that the rent agreed with the previous owner was at Rs. 6/4/- per month which he had sent by money order to the plaintiff for the period since he became owner thereof, that he was not liable to ejectment and and that defendant No. 2 was his sister and was living with him. Defendant No. 2 supported defendant No. 1. The trial court framed several issues but since only two points have been raised in this Second Appeal here, it is not necessary to refer to others. The one question raised by the learned counsel for the plaintiff-respondent in this Court is that the defendant was not a tenant. On this question, the trial court held that defendant No. 1 was a tenant and this finding has been confirmed by the lower appellate court. The other question raised by the learned counsel for the appellant is that the appellant had not made any default within the meaning of Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act. The court below was, therefore, not right in decreeing the suit for ejectment. The trial court on this question held that the defendant did not commit any default and he was not liable to ejectment. The lower appellate court has reversed that finding and has given a decree for ejectment holding that the defendant had committed a default.

( 2 ) THIS appeal originally came up for hearing before one of us and learned counsel for the appellant relied upon the case of Bachchan Lal v. Ram Asrey, 1960 All LJ 147 decided by a learned single Judge of this Court in which the following observation was made:

"it is true that under the sale agreement the previous owner Nandrani had assigned to the new landlord the right to recover the amount of rent which was due to her, but this was merely an assignment of an actionable claim or "chose in action" as it is called under the English law. In respect of this amount he was the tenants creditor but could not claim it as rent, on a sale or transfer of the property. If the previous owner transferred to his successor the right to collect arrears of rent the latter is entitled to recover this amount as a creditor but not as a landlord. On the tenants refusal to pay he can file a suit for the recovery of the amount but he cannot treat the tenant as "rent defaulter", and cannot treat his refusal as a "default" within the meaning of section 3 (1) (a) of the U. P. (Temporary) Control of Rent and Eviction Act for there can be no rent without a relationship of landlord and tenant. "

In view of this ruling, the case was referred to a Division Bench and this is now being heard by this Bench.

( 3 ) ON the first question whether the defendant is a tenant or not the concurrent finding of both the courts below appears to be a pure finding of fact. Both the courts below have found that at the time when the plaintiff purchased the property, Sheikh Abdul Karim served a notice on the defendant informing him of the transfer and asking him to pay all the arrears and future rent to the plaintiff. This document is Ext. A-4 on the record dated the 31st of October, 1952. It may be noted here that at the time of sale there was a term in the sale deed that the plainti