Prakash Krishna, J.

This revision is u/s 25 of the Provincial Small Causes Courts Act, at the instance of the plaintiff of O.S. No. 96 of 1970.

2. The plaintiff applicant filed a suit for recovery of arrears of rent and damages for use and occupation and for the ejectment of the defendants from the Bungalow No. 29, Kanpur Road, Allahabad. The plaint was instituted on the allegations that the house No. 29, Kanpur Road, Allahabad is a waqf property known as Waqf Mohd. Husain and plaintiff thereof is mutwalli. The waqf was created by waqf deed dated 9.11.1966 by Smt. Mahmood Jahan Begum widow of late Syed Mohd. Husain, barrister at law. Smt. Mahmood Jahan Begum expired on 29th March, 1968. The said Bungalow No. 29 consists of several parts and number of tenants are living therein. The disputed portion of the accommodation consists of two verandah, two bath rooms and latrine, one big courtyard and platform and six rooms, garage etc. The defendant respondent No. 1 is daughter of plaintiffs step sister. The aforesaid accommodation was never let out and the husband of the defendant respondent No. 1 (hereinafter referred to as the tenant) was member of Indian Civil Services and by abusing his position as such got the disputed accommodation allotted by means of the allotment order dated 2nd of September, 1969. Copy of the allotment order meant for service on the plaintiff landlord was received by the husband of the tenant. The plaintiff who was residing at Delhi came to Allahabad in connection with the management of the waqf. He then came to know about the allotment order. The tenant expressed her desire that she will pay a sum of Rs. 475 per month as rent. The plaintiff who is mutwalli accepted the said offer of the tenant as it was beneficial to the waqf and consequently he did not raise any objection before the Rent. Control and Eviction Officer against the allotment order which was otherwise obtained by playing fraud and was result of the abuse of official position by the husband of the tenant. The plaintiff dsmanded rent in the month of March, 1970 from the tenant but without any success. The tenancy was terminated by means of a notice dated 17th April, 1970 u/s 106 of the Transfer of Property Act read with Section 3(a) of U.P. Act No. 3 of 1947. The said notice was served on the tenant by refusal on 27.4.1970. The suit was filed for recovery of a sum of Rs. 4,212.58 for the period September, 1969 to 26th May, 1970 towards the arrears of rent and Rs. 62.42 towards the use and occupation of the disputed property, total for a sum of Rs. 43,000.

3. The suit was contested by the tenant by denying the title of the plaintiff and the relationship of landlord and tenant in between the parties. It was stated that Smt. Mahmood Jahan Begum expired on 29th March, 1968 issueless, and thus the property has been inherited by her real sister who happens to be the mother of the tenant. The plaintiff is not mutwalli of the waqf and no such waqf was created by Smt. Mahmood Jahan Begum.

4. In para 4 of the written statement it was stated that the tenant expressed her desire to the plaintiff, that she wants to live at Allahabad in connection with the education of children. At that time she was informed by the plaintiff that in pursuance of the terms of the waqf deed, the mother of the tenant is entitled to live in a part of the disputed premises and therefore she may with the consent of her mother live therein. She came in possession of the disputed property on 1st of July, 1969 and the allotment order dated 2.9.1969 was obtained by her under the impression that the property in dispute is waqf property. The allotment order was obtained by her on the suggestion of the plaintiff.

5. The parties led evidence in support of their respective cases. The trial court on the basis of the pleadings of the parties framed the following seven issues :

"(1) Whether the defendant has committed default in payment of rent ?

(2) Whether there is relationship of landl