Kan Singh, J.
1. This is a plaintiff's second appeal arising out of a suit for arrears of rent and ejectment. The suit shop which is two storeyed is situated in Sawai Madhopur. The plaintiff-appellant claimed that it was let out to the father of the defendant-respondent Ramniwas on a monthly rent of Rs. 20/- on 16-6 54 The plaintiff sought the eviction of the defendants on the ground of their having committed three defaults in the payment of rent wthin a period of 18 months. The rent for three years amounting Rs. 720/- was also claimed. The defendants admitted the tenancy but denied that the rent payable by them was Rs. 20/- per month and asserted that the rent was only Rs. 11/- per month. They denied the execution of the rent note on 16 6 54 by deceased Ramniwas. They further stated that they had been remitting the rent regularly to the plaintiff at Rs. 11/- per month Dy money orders, but the plaintiff having accepted some of the money orders refused to accept the money orders later on. They further pleaded that Ramniwas was an old tenant from much before 16-6-54.
2. The learned Munsif, Sawai Madhopur, in whose court the suit was filed, framed a number of issues ard after recording the evidence reached the conclusion: (1) that the rent note Ex. 1 was executed by Ramniwas for Rs. 20/- per month, (2) the suit premises were not bonafide or reasonably required by the plaintiff, (3) he shop was not in need of repairs, (4) the defendants were defaulters and were consequently liable to eviction, and (5) an amount of Rs. 720/- was recoverable from the defendants. Accordingly, the learned Munsif passed a decree for ejectment as also for arrears of rent amounting to Rs. 720/- in favour of the plaintiff and against the defendants.
3. Aggrieved by the decree of the learned Munsif the defendants went up in appeal to the. court of the learned Senior Civil Judge, Gangapur. While the appeal was pending before the learned Senior Civil Judge the Raj. Premises (Control of Rent & Eviction) Act, 1950 was amended by the Act No. 12 of 1965 and a new Section 13A was inserted in the Act. According to this section a tenant, who was a defaulter, could pay or deposit the arrears of ent with the result that the ground for eviction did not survive. The learned Senior Givil Judge then considered the question as to what was the monthly rent payable by the defendant tenants. He reappraised the evidence led by the parties and came to the conclusion that the plaintiff was not successful in proving the execution of the rent note Ex. 1 or that the rent fixed was Rs. 20/- per month. For coming to that conclusion the learned Senior Givil Judge scanned the oral evidence led by the parties and referred to a number of probabilities and on balancing them held that the rent note Ex. 1 was not genuine. So was his conclusion about the genuineness of Ex. 2, a notice said to have been given by Ramniwas to the plaintiff on which reliance was placed by the plaintiff. Accordingly, the learned Senior Civil Judge accepted the appeal and dismissed the plaintiff's suit in toto. He further ordered that the defendants shall be entitled to the refund of an amount of Rs. 2342/- paid by them on 28.9.65 in pursuance of the order Of the learned Senior Civil Judge or they shall adjust it towards the rent that had accrued so far or would accrue in future at the rate Rs. 11/- per month.
4. It is in these circumstances that the plaintiff has come in second appeal to this Court.
5. learned Counsel for the plaintiff has advanced a two-fold contention. In the first place, he submitted that the court below has wholly mis-appreciated the evidence of the parties and has reached a conc'usion which was perverse- According to learned counsel, there was no adequate basis for the learned Senior Civil Judge to have reached the conclusion which he did. In the second place, he submitted that the defendants having on their own paid the arrears of rent at Rs. 20/- per month, on 28-9-66 were estopped from contending that the rent was not Rs. 20/- per month but only Rs. 11/- p. m.
6. The second contention, in my view, need not detain me long. The defendants had made the application in accordance with Section 13A of the Act and in order to save himself from eviction he deposited the rpnt that was decreed by the first court and which was being claimed by the plaintiff. This Would not dispose of the appeal as the contention about the quantum of rent or at what rate it was realisable was still there. Apart from every thing in the memo of appeal there is no such plea of estoppel. learned Counsel for the appellants referred me to ground No. 21 which reads as follows:
That the defendant had admitted rent at the rate of Rs. 11/- per month He had made the payment Under Section 13A The learned Senior Civil Judge has acted illegally in dismissing the plaint ff's suit in toto and also ordering refund of the amount paid Under Section 13A. this is a patent illegality on the face of the record.
7. I am afraid the above ground does not bring out the plea of any estoppel. In the first sentence it is said that the defendant had admitted rent to be Rs. 11/- per month. This is far from saying that the defendant had given up that stand and had admitted that the rent payable was Rs. 20/- per month. If the payment of the arrears of rent were to be construed as an admision by the defendants that rent was payable at Rs. 20/- per month, then there would have been end of the matter and it was expected of the plaintiffs to have submitted before the learned Senior Civil Judge that nothing remained to be decided in the appeal but it appears that elaborate arguments were addressed by either side regarding the genuineness of the documents Exs. 1 and 2 and as to what rent was payable by the defendants. Therefore, there is nothing of substance in this contention.
8. The first contention turns on the appreciation of the evidence. The finding reached by the learned Senior Civil Judge regarding the genuineness of the document Ex. 1 or Ex. 2 or about the credibility of the plaintiff's witnesses in the light of the probabilities of the case is one of the fact and cannot be interfered with in second appeal, unless it is shown that the finding stands vitiated on account of any error of law or that the view taken by the court below was such as no rea nable person could take, I had gone through the statements of the parties as witnesses. The plaintiff Goverdhanlal has admitted in cross-examinaticn that though the rent agreed was Rs. 20/- per month, the defendants were paying only Rs. 11/- per month who he had been accepting for quite a long period. I may read the relevant portion of his statement:
eqn~k ykge eq>s 11@& :0 izfrekg ds fgLkkc ls gh fdjk; Hkstrs jgs A eSus mUgs 20@& :0 izfrekg ls fdjk;k Hkstus dks dgk ijUrq og ugh ekus A eS fQj Hkh fdjk;k Lohdkj djrk jgk A ijUrq fdjk;k 20@& :0 izfrekg ds fglkc ls ,MtLV djrk jgk A eSus mUgs 20@& :0 ds fglkc ls fdjk;k Hkstus dk uksfVl ugh fn;s A
It is noteworthy that the suit was filed on 3 7.61. though the rent note was executed as back as 16 6 54. It is.not understood why if the rent that was agreed to be paid by the defendants was Rs. 20/- per month and not Rs. 11/- per moth, the plaintiff would nei her give any notice to the plaintiff when short payments were being made nor file any suit for recovering the balance. On the other hand, the plaintiff allowed the claim for the diffrence of rent to becom time barred. This conduct of the plaintiff suggests that even if the rent note were executed in 1954 by Ramniwas for all practical purposes it remained a dead letter and was not acted upon. There is a clue to this unnatural conduct of the plaintiff He has admitted in the earlier part of his cross-examination that the rent for the shop at one time was Rs. 2/8/- per month and then it was Rs. 4/8/- per month. It may be that the plaintiff may have considered discretion to be better part of valour, because: at the best the rent could be taised only to the extent of the times the basic rent namely, the rent payable in 1943, Therefore, I am inclined to agree with the conclusion reached by the learned Senior Civil Judge that the rent payable was Rs. 11/- per month only. It has not been bhown how the conclusion of fact arrived at by the learned Senior Civil Judge is vitiated by any error of law.
9. In view of what I have said above.the appeal is without any force & consequently I hereby dismiss it with costs.