ORDER

Lok Pal Singh, J. - Present second appeal is directed against the judgment and decree dated 30.08.1988 passed by learned III Addl. Civil Judge, Dehradun in Civil Appeal No. 52 of 1979 "Dayaram Vs. Bhagwan Dai", whereby the Appellate Court allowed the appeal and decreed the suit of the plaintiffs/respondents by reversing the judgment and decree of dismissal of suit passed by the trial Court.

2. Factual matrix of the case are that the plaintiff/respondent instituted a SCC suit No. 23 of 1976 in the Court of Judge, SCC with the averments that the plaintiff is the owner-landlord of the property bearing no. 69(old)/125 (new) Karanpur, Dehradun and Bhawani Bhikh, husband of the defendant, was a month to month tenant of the plaintiff at a monthly rent of Rs. 60/-. The provisions of U.P. Act No. 13 of 1972 are applicable in the said property. The plaintiff sent a registered notice to Bhawani Bhik demanding the arrears of rent amounting to Rs. 3060/-. The said notice was return back with the endorsement that the "addressee has passed away". The Bhwani Bhik died on 31.07.1975 leaving behind the defendant as his sole surviving legal heir. Thus, the defendant became tenant of the plaintiff, thereafter, when the tenant did not pay the due rent then the landlord on 22.08.1975, sent a notice to the tenant and demanding arrears and terminating her tenancy. It is alleged that despite services of notice the defendant neither vacated the said premises nor paid the arrears of rent, whereafter the respondent/landlord constrained to institute the suit against the tenant for recovery of rent and ejectment.

3. The defendant filed her written statement and it was emphatically denied that Late Bhawani Bhik was a tenant of the plaintiff in the property in question. It was further stated that there is no relationship of landlord and tenant between the plaintiff and late Bhawani Bhik. It is also stated that there is no question of any amount of arrears of rent for the period of 02.04.1971 to 01.07.1975 amounting to Rs. 3060/- due against late Bhawani Bhik. It is also stated that the defendant is sole owner of the property in question. It is also denied that after the death of Bhawani Bhik, the defendant became the tenant of said property. It is contended that the property in question originally belonged to late Bachu Gwala. Late Bhawani Bhik was Nivasa (daughter's son) of late Bachu Gwala, who had no other issues except the mother of Bhawani Bhik. Bhawani Bhik fell into bad company and developed habits of gambling and drinking and Bachu Gwala executed a Will dated 10.04.1932, whereby he revoked his previous Will, favouring Bhawani Bhik and bequeathed all his properties including the disputed property in favour of the defendant. It is also stated that the defendant became the absolute and exclusive owner of the property in question after the death of Shri Bachu Gawala and she has been in its possession and beneficial enjoyment since then to this date as its owner and she is neither husband of the defendant nor defendant is tenant of the plaintiff.

4. On the plea raised by the defendant that the plaintiff is not the owner of the suit property and there is no relationship of landlord and tenant between them and that the suit is not cognizable by the Small Causes Court.

5. The Judge Small Causes Court returned the plaint to the plaintiff to institute the suit in regular civil side. Perusal of the order passed by the Judge S.C.C. would reveal that the plaintiff after return of the plaint instituted the same in the Court of Civil Judge (Junior Division), Dehradun, which was numbered as original suit no.203 of 1978 "Daya Ram Vs. Bhagwan Dai". It is apt to note that the plaintiff, without there being any amendment in the plaint, instituted the same suit without any pleading in regard to the title.

6. On the pleadings of the parties, the trial court formulated the following issues in the suit:

(i) Whether there is relationship of the landlord and tenant before the