Dhavan, J.:— This is a second appeal by a tenant against a decree for ejectment and arrears of rent. The appellant Bachchan Lal occupied the house in dispute as the tenant of a woman Nand Rani on a rent of Rs. 4/- per month. Nand Rani sold the house to Ram Asre, the plaintiff-respondent in this appeal. Bachchan Lal, however continued to occupy the house. Under the terms of the sale, Ram Asre acquired the rights to realise arrears of rent from the appellant for the period when he was Nand Rani's tenant.
2. The new landlord requested the appellant to vacate the house as he required it for his down use and also asked him to pay arrears of rent. The appellant replied that he was entitled to occupy the house under a special arrangement with the previous landlord. Ram Asre thereupon sent him a notice under registered post requiring him to pay to the arrears within one month and also to vacate the house. He included in his demand the rent due to the previous landlord. As the appellant ignored the notice the plaintiff filed a suit for ejectment and realization of arrears of rent including the amount due to the old landlord. The appellant contested the suit and set up in defence an oral agreement made with the previous owner. He alleged that, under this agreement, he had carried out extensive repairs to the house at his own expense in consideration of which he was allowed to deduct from the rent the amount spent by him at the rate of Rs. 2/- per mensem and to remain in occupation till the entire amount was adjusted. The appellant alleged that he virtually rebuilt the house at a cost of Rs. 300/- out of which Rs. 118/- had been adjusted by the old landlord towards rent leaving a balance of Rs. 182/-. He pleaded that he could not be ejected until the entire amount spent by him was adjusted.
3. The trial court decreed the suit after disbelieving the appellant's story of an agreement with Nandrani and holding that the appellant had committed default in payment of rent. The defendant's appeal was rejected summarily under Or. 41, R. 11, C.P.C by learned District Judge of Farrukhabad who observed that it was not credible that the contract of the nature alleged by the appellant could have been made orally. He also held that “the appreciation of the evidence by the trial court is sound and correct. No point of law arises.” The remark that no point of law arose betrays a misunderstanding of the rights of the appellant and the responsibility of the appellate court. The learned Judge overlooked the fact that he was not hearing a second appeal but an appeal from the decision of a trial court in which the appellant was entitled to ask the appellate judge to review the entire evidence and set aside the decision of the trial court if its assessment of the evidence was wrong. The learned Judge's observation that the appreciation of the evidence of the trial court was sound and correct is also difficult to understand as he had dismissed the appeal summarily without examining the record. Bachchan lal has come to this Court in Second Appeal.
4. In this Court the Hon'ble Judge who admitted this appeal observed that the lower appellate court could not have made a satisfactory assessment of the evidence without examining it himself. He recorded his opinion, in the order admitting the appeal, that the case had not been tried by the lower appellate court and may have to be sent back to it for decision on merits.
5. In view of these observations of the Hon'ble Judge, (Bishambhar Dayal, J.), I have given this case my anxious consideration. The case was not satisfactorily handled by the lower courts. The trial court misunderstood even the nature of the appellant's defence and thought that the appellant had denied the landlord's title. I have examined the written statement of the appellant: it contains no such plea. He merely pleaded that, in consideration of having made extensive repairs to the house at his own costs, the appellant had acquired a right to occupy the accommodation till the amount spent by him was adjusted towards the rent the rate of adjustment being at Rs. 2/- per mensem. This is not a denial of the landlord's title but a plea that the appellant had been granted a license coupled with a grant. The appellate Judge's approach in appeal was also unsatisfactory. He took the view that the appellant's story of an oral agreement was hard to believe. Common experience, however, should have told him that agreements of this sort between the landlord and the tenant are quite common and are usually made orally.
6. Both the courts were in error in treating the appellant as a defaulter because he refused to pay to the new landlord the rent which was due to the old. The plaintiff Ram Asre served a notice of demand under Sec. 3(1)(a) of the U.P Rent Control and Eviction Act treating the appellant as a defaulter even for the period when Ram Asre was not the owner of the house. But he was clearly not entitled to demand rent for the period when no relationship of landlord and tenant existed between him and the appellant. It is true that under the sale agreement, the previous owner Nand Rani 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 “close in action” as it is called under the English law. In respect of this amount, he was the tenant's 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 Sec. 3(1)(a) of the Control of Rent and Eviction Act, for there can be no rent without a relationship of landlord and tenant. The courts below were in error in holding that the appellant was a defaulter for not paying to the new landlord the rent due to the old.
7. If this were the only question, I would have allowed this appeal and set aside the decree for ejectment. But there is another aspect of the matter. It was admitted before me that the appellant had not paid a single pie as rent to the present landlord. Even according to the appellant's own version, he was under a liability, after adjusting half the rent, to pay the balance at the rate of Rs. 2/- per mensem. The notice of demand was served on him after three months' rent was due from him to the new landlord at the rate admitted by the appellant himself. He did not tender the amount which he alleged was due from him. He paid nothing. This court has taken the view in several cases that the tenant must even in a case where the amount of rent is disputed, tender the amount which he thinks is due. He cannot take the attitude that as the landlord has made an exaggerated claim, he is entitled to pay nothing. Learned counsel for the appellant, Mr. B.S Darbari, who argued this appeal with some tenacity, was not able to explain why the appellant did not pay even the amount which was due according to his own version. In this view of the matter it is clear that he was a defaulter even as regards the present landlord and was rightly ejected.
8. Therefore, I do not think that it will be in the interests of justice to remand this case for a rehearing.
9. The appeal is dismissed, but in the circumstances of the case I direct that the parties shall bear their own costs throughout.
10. Leave to appeal is refused.
11. Appeal dismissed.