G.K. Misra, J.
1. The plaintiff's father and defendant No. 2 were brothers. The disputed house admittedly belonged to them. It was let out to defendant No. 1. The plaintiff's ease is that defendant No. 1 was to pay rent at the rate of Rs. 10/-per month. Previously he was collecting rent through defendant No. 2 though the house was allotted to his share in a partition. But from 1-8-64 to 31-7-67 defendant No. 1 did not pay any rent. The suit is for recovery of Rs. 360/- for a period of 3 years. Defendant No. 1 contested the suit alleging that he does not know anything of the partition and all through he knew defendant No. 2 as the landlord to whom he was paying rent at first at the rate of Rs. 2/- per month and subsequently at the rate of Rs. 5/- per month. He was not in arrears. Defendant No. 2 supported the case of defendant No. 1, but did not appear in court to examine himself. The learned S. C. C. Judge dismissed the suit holding that there was no relationship of landlord and tenant between the plaintiff and defendant No. 1 as there was no attornment of defendant No. 1 to the plaintiff after the partition. He further held that defendant No. 1 had paid the entire amount to defendant No. 2.
2. The plaintiff claims rent at the rate of Rs. 10/- per month. The onus is on him to prove that rate. Defendant No. 1 denies this rate. The plaintiff has no corroborating evidence. In the circumstances the defence story that the rent was at the rate of Rs. 5/- per month during the suit period must be accepted.
3. Defendant No. 1 took the plea of payment to defendant No. 2. The onus of payment is on him. There is no corroborating evidence on his side. It must accordingly be held in view of the denial of the plaintiff that the plea of payment has not been proved.
4. On 24-9-54 there was a partition in the family of the plaintiff and defendant No. 2. This is evidenced by the registered partition deed Ext. 3. The suit house was allotted to the share of the plaintiff. The plaintiff however admitted that even after the partition he was collecting rent from defendant No. 1 through the agency of defendant No. 2. Before 1-8-64 the plaintiff served no notice on defendant No. 2 that the disputed house fell to his share. In such a state of affairs the question is whether defendant No. 1 is liable to pay rent to the plaintiff even though he was not attorned to the latter as a tenant.
5. The law on the point is well settled and is to be found in Section 109 of the Transfer of Property Act. The relevant portion of it runs thus:
'If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the right and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him;
Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.'
6. In this case the property devolved upon the plaintiff alone as a result of the partition. Defendant No. 1 had no notice of such partition. If defendant No. 1 had paid the rent to defendant No. 2, then he had no further liability to pay the rent to the plaintiff who is admittedly the owner. But where the amount has not been paid to defendant No. 2, the liability of defendant No. 1 to pay the rent to the real owner subsists without notice or attomment. This view Ss fully supported by AIR 1957 Cal 627, Pulin Behary v. Miss Lila pey.
7. In the result, the plaintiff is entitled to a decree in part at the rate ofRs. 5/- per month for a period of 3 years.Thus he is entitled to a decree for anamount of Rs. 180/-. The order of thelearned S. C. C. Judge is set aside andthe Civil Revision is allowed in part.The plaintiff is entitled to half the costsof the trial court. Parties to bear theirown costs in this Court.