JUDGMENT T.S. Misra, J.
1. This is an appeal by defendant No. 2 arising out of a suit filed by the respondent No. 1 against the respondent No. 2 for ejectment of the defendants from the accommodation in question and for recovery of arrears of rent and damages. The plaintiff had alleged that the defendant No. 2 was a sub-tenant and that the defendant No. 1 had committed a default within the meaning of Section 3 (1) (a) of the U. P. Act III of 1947 in payment of arrears of rent for more than three months after the service of notice of demand on him. He had also alleged that the defendant No. 1 had illegally and without the consent and permission sublet a portion of the accommodation in question to the defendant No. 2. On these two grounds he claimed a right to file a suit for eviction of the defendant after termination of the tenancy by serving a notice under Section 106 of the Transfer of Property Act. Both the defendants contested the suit and filed a separate written statement. In para. 10 of the written statement of defendant No. 1 it was alleged that he allowed defendant No. 2 to occupy a portion of the ground floor of the house in dispute with effect from 1-5-1962 as a licensee with the consent and permission of the plaintiff's father. In para. II of the written statement it was alleged that after some time it was agreed between the defendant No. 1 and the defendant No. 2 that the latter would pay a sum of Rs. 25/-p.m. by way of rent to the defendant No. 1 for use and occupation of the portion occupied by him. In his written statement the defendant No. 2 pleaded that he took the lower portion of the house in question on 15th December, 1960 from the plaintiff on monthly rent of Rs. 30/-. It was further alleged that he was a tenant of the plaintiff and was paying the rent regularly to him. He also alleged that he did not even see Ram Roop Pandey defendant No. 1 and did not know him hence the question of sub-tenancy did not arise. In para. 20 of the written statement he has asserted that he was not the sub-tenant of Ram Roop Pandey. In para. 23 of the written statement it was alleged that the suit of the plaintiff for ejectment against him was bad as his tenancy had not been terminated in accordance with law. The trial Court found that the defendant No. 1 had committed the default in making payment of rent and the defendant No. 2 was not the tenant of the plaintiff as alleged by him. It also held that the lower portion of the house in dispute was sublet to the defendant No. 2 at the rate of Rs. 25/- p.m. by the defendant No. 1. The trial Court, therefore, decreed the suit as prayed. On appeal by the defendant No. 2 the finding recorded by the trial Court to the effect that the defendant No. 2 was the sub-tenant of the defendant No. 1 was upheld. The appellate Court also confirmed the finding of the trial Court that the defendant No. 2 was not the tenant of the plaintiff. On these findings the decree passed by the trial Court was confirmed and the appeal was dismissed. Aggrieved, the defenadnt No. 2 has now come to this court in second appeal.
2. The learned counsel for the appellant urged that the appellate Court below did not properly consider the electoral rolls filed by the defendant No. 2 in the case which established beyond doubt that the defendant No. 2 had been in occupation of the ground floor accommodation since 15th December, 1960 as alleged by him. It was urged that as the name of the defendant No. 2 appeared in the electoral rolls prepared in the year 1962, it was established that the defendant No. 2 had been in occupation of the ground floor accommodation prior to the year, 1963 and not with effect from December, 1963 as alleged by the plaintiff in para. 4 of the plaint. On the basis of this circumstance it was argued that the contention of the defendant No. 2 that he was a tenant-in-chief of the plaintiff and not a sub-tenant of the defendant No. 1 should have been accepted. In order to appreciate this contention it is necessary to refer to the pleadings of the parties. In para. 4 of the plaint the plaintiff had averred that the defendant No. 1 had sublet the lower portion of the house in question to the defendant No. 2 sometime in December, 1963. In paras. 10 and 11 of the written statement the defendant No. 1 had stated that he had allowed the defendant No. 2 to occupy the ground floor accommodation as his licensee with effect from 1st May, 1962 whereas in para. 11 of his written statement the defendant No. 2 had contended that he came to occupy the lower portion of the said house on 15th December, 1960 as a tenant of the plaintiff at a monthly rent of Rs. 30/- p.m. The defendant No. 1 had further pleaded that he had allowed the defendant No. 2 to occupy this accommodation with the consent of the plaintiff whereas the defendant No. 2 pleaded that he was not the sub-tenant of the defendant No. 1. On the contrary, he asserted that he was the tenant-in-chief of the lower portion of the said house having a direct relationship with the plaintiff as a tenant and landlord. Thus, the plaintiff as well as the defendants Nos. 1 ami 2 set up different cases. From the averments made by the defendants Nos. 1 and 2 at least one fact is clear that the defendant No. 2 was in occupation of the ground floor accommodation. The plaintiff alleged that the occupation by the defendant No. 2 was not with his consent whereas the defendant No. 2 contended that there was an agreement of tenancy between him and the plaintiff as a result of which he became the tenant of the accommodation thereof until his tenancy was properly determined. The burden to prove the agreement of tenancy obviously, therefore, lay on the defenant No. 2. He had to establish by the cogent and convincing evidence that there did take place between him and the plaintiff agreement to let out the accommodation in question to him. In support of his contention he examined himself and Nand Kishore. He also filed the electoral rolls for the year 1961 in which his name appeared as an occupant of a portion of the house in question. The electoral roll for 1961 by itself would however not prove the factum of tenancy. It merely established the occupation of the house in question by the defendant No. 2 in the year 1961. The agreement was yet to be proved. There is no documentary evidence to prove that agreement. The oral evidence adduced by him consisted of his own statement as well as the statement of Nand Kishore. The appellate Court below did not place reliance on the statement of Nand Kishore on the ground that he had friendly relation with the defendant No. 2. The statement of the defendant No. 2 could also not be relied upon being the statement of an interested person. The appellate Court also observed that the oral evidence adduced on behalf of the defendant No. 2 was not supported by the circumstances and probabilities and for that it considered two circumstances, namely, the absence of the rent note as well as the rent receipts. It also observed that the evidence of the plaintiff was reliable in preference to the evidence adduced on behalf of the defendant No. 2. In regard to the entries in the electoral rolls filed by the defendant No. 2 it was observed that the mere fact that the name of defendant No. 1 was not recorded would not lead to the conclusion that the defendant No. 1 was not the tenant of the house in question. The defendant No. 1 was the tenant not only of the lower portion of the house in question but also of the accommodation on the upper storey. Hence the absence of his name in the electoral roll would not mean that he had ceased to be the tenant of the house in question or that the defendant No. 2 had entered into an agreement of tenancy with the plaintiff. The appellate Court below was correct in observing that the tenancy should be deemed to have continued unless there was surrender by the defendant No. 1. On the appreciation of the evidence on record both the courts below had recorded a concurrent finding of fact that the defendant No. 2 was not the tenant-in-chief of the plaintiff. This finding is based on evidence and I find no reason to interfere with the same in the second appeal. No other point was urged.
3. In the result, the appeal fails and is, accordingly, dismissed with costs.