Bhure Khan vs Kundan Lal

Chandra Prakash, J.

This is a second appeal against the judgment and decree dated August 1, 1966 of Shri R.B. Agarwala, II Additional Civil Judge, Aligarh, dismissing the appellant''s suit for ejectment after allowing the appeal of the respondent.

The suit giving rise to this appeal was filed by the plaintiffappellant against the defendantrespondent on the allegations that the respondent was the tenant of the plaintiffappellant on a monthly rent of 00.50 np. and the latter did not pay rent from December 1, 1962. The plaintiffrespondent then sent a composite notice of demand and to quit on February 29, 1965 which was refused by the respondent. On these allegations the plaintiff filed the suit for the recovery of Rs. 15| as arrears of rent and ejectment.

The defendantrespondent admitted the rate of rent set up in the plaint and the fact that he was a tenant of the plaintiff. His defence was that the notice of ejectment was invalid.

After taking evidence of the parties the trial court came to the conclusion that the notice of ejectment was valid and the defendant had committed a default. On this view the trial court decreed the plaintiff''s suit for possession and recovery of Rs. 151 as arrears of rent.

Against the above decree the respondent filed an appeal in the Court below and the Court below after hearing the parties came to the conclusion that the notice of ejectment set up by the plaintiff was not proved in the case and the appeal was allowed and the suit for possession was dismissed.

Feeling aggrieved the plaintiffappellant has come up in second appeal.

I have heard the learned counsel for the parties and I have also gone through the record. I am afraid the order of the Court below cannot be disturbed.

The main reason on which the lower appellate court dismissed the suit for possession is that the notice of eviction was not proved in the case. I have gone through the statement of Bhure Khan, who tried to prove the notice in this case. He was an illiterate person. He did not state that the alleged notice was read over to him before he thumbmarked it. Being illiterate he could not prove the writing of the scribe. In his crossexamination he stated that he had no idea if Narain Prasad wrote the alleged notice in his presence or not. In these circumstances the Court below was perfectly right in holding that the notice of ejectment on which the appellant relied for ejectment was not proved in the case. When the notice of ejectment was not proved the case for ejectment was bound to fall down.

The appeal is dismissed; but in the peculiar circumstances of the case there will be no order as to costs.