Research › Search › Judgment

Rajasthan High Court · body

2003 DIGILAW 1171 (RAJ)

Bhanwar v. LRs of Jahruddin

2003-08-21

PRAKASH TATIA

body2003
JUDGMENT 1. - Heard learned counsel for the parties. 2. This is a second appeal of the plaintiff-landlord against the judgment and decree of the First Appellate Court dated 4th April, 1998 by which the First Appellate Court allowed the appeal of the defendant Hurmat and dismissed the suit of the plaintiff by judgment and decree dated 4th April, 1998. 3. Brief facts of the case are that the plaintiff-appellant filed the suit for eviction against the defendant Hurmat and one Jafar Mirza alleging that the suit premises was purchased by the defendant No. 2 from one Noorjaha by registered sale deed dated 7.1.61. The defendant No. 2 after purchase of the house in dispute sought permission from the Municipal Board, Bikaner for additional alteration and he converted this house in two portions. In one of the portions defendant No. 2 started living and the other portion was given on rent to one Jagdish for a rent of Rs. 15/- per month. Jagdish vacated the house in the year 1972 and in the year 1973 the portion, which was in possession of Jagdish was let out to defendant No. 1. Since then, the respondent No. 1 Hurmat was residing in the premises. The said portion in which the defendant No. 1 was tenant was purchased by the plaintiff by registered sale deed dated 4.1.80. It is stated by the plaintiff that the vendor informed the defendant No. 1-tenant that the premises has been sold out to plaintiff, therefore, she may give rent to the vendor-plaintiff. It is said that no rent was paid by the defendant, therefore, the suit for eviction was filed by the plaintiff on the grounds of default, denial of relationship of landlord and tenant by the defendant and also on the ground of denial of title and for personal bonafide need of the plaintiff. 4. The defendant No. 1 submitted written statement and denied the plaint allegations and claimed that she is owner of the property and there is no relationship of landlord and tenant between the plaintiff and the defendant No. 1 nor she is in occupation as tenant. 5. 4. The defendant No. 1 submitted written statement and denied the plaint allegations and claimed that she is owner of the property and there is no relationship of landlord and tenant between the plaintiff and the defendant No. 1 nor she is in occupation as tenant. 5. The issues were framed and the trial court decreed the suit of the plaintiff by judgment and decree dated 12th July, 1991 holding that plaintiff proved the title of the suit property and defendant No. 1 denied the title as well as relationship of the landlord and tenant. The trial Court also held that defendant Hurmat committed default of payment of rent, and therefore plaintiff is entitled for decree of eviction. 6. The defendant No. 1 Hurmat preferred first appeal, that was allowed by the First Appellate Court after reversing the findings on issues No. 1 and 3 recorded by the trial court holding it that the plaintiff failed to prove the relationship of landlord and tenant between the plaintiff and defendant No. 1. The plaintiff preferred second appeal and during the pendency of the second appeal, the defendant No. 1 Hurmat expired and her legal representatives were taken on record. The appellant-plaintiff also submitted an application before this court under Section 151 CPC informing that the suit premises has fallen down and also placed on record the photograph of the premises in dispute. 7. According to learned counsel for the appellant, the First Appellate Court committed serious illegality in reversing the findings recorded by the trial Court despite the fact that defendant's suit in which she claimed herself to be owner of the property, has aleray been dismissed and the plaintiff's evidence proves that already No. 1 Hurmat was the tenant in the premises. It is also submitted that so far as sale in favour of the plaintiff is not in dispute. Learned counsel for the appellant read over the statement of the witnesses and also the reasons given by the courts below to show that the First Appellate Court has committed illegality in dismissing the suit of the plaintiff-appellant. 8. It is also submitted that so far as sale in favour of the plaintiff is not in dispute. Learned counsel for the appellant read over the statement of the witnesses and also the reasons given by the courts below to show that the First Appellate Court has committed illegality in dismissing the suit of the plaintiff-appellant. 8. A bare perusal of the reasons given in the judgments of the trial court as well as of the First Appellate Court, it is clear that only principal issue before the trial court was whether there is relationship of landlord and tenant between the plaintiff and defendant No. 1 so far as premises in question is concerned. The trial Court, therefore, framed the specific issue relating to the only relationship of landlord and tenant and not of the title of the plaintiff so as to make it a suit for either declaration or suit for possession on the basis of title. The trial Court held that in view of the evidence of the plaintiff whereby plaintiff tried to prove the events leading to the passing of the title of the property to the plaintiff, the plaintiff appears to be owner of the property. For this, the trial court referred the documents in detail and in this context observed that even the suit of the defendant No. 1 Hurmat has already been dismissed and, therefore, decided the issues No. 1 and 3 in favour of the plaintiff. The First Appellate Court confined its reasons to the issues involved in the suit and which were whether there is a relationship of landlord and tenant between the plaintiff and defendant No. 1 and whether the defendant No. 1 denied the title. The First Appellate Court found that there is no written rent deed, no rent receipt and there is no other documentary evidence in support of alleged plea of the plaintiff that defendant No. 1 is in occupation as tenant in the premises. The First Appellate Court also found that there are serious contradiction in the statement of the witnesses of the plaintiff as well as the statement of DW-2/1 Jaffar, who was examined by the plaintiff himself, though he was defendant. 9. The First Appellate Court also found that there are serious contradiction in the statement of the witnesses of the plaintiff as well as the statement of DW-2/1 Jaffar, who was examined by the plaintiff himself, though he was defendant. 9. Learned counsel for the appellant could not point out any other material by which it can be gathered that plaintiff could prove relationship of landlord and tenant between the plaintiff and the defendant No. 1 or Smt. Hurmat entered into premises as tenant of erstwhile vendor. The dismissal of suit of the defendant No. 1 wherein even if there was a claim of the defendant No. 1 to be a owner of the property itself cannot make the defendant No. 1 tenant of the plaintiff or predecessor of the plaintiff. In a suit filed on the basis of the tenancy, the plaintiff can get the decree by proving the relationship of landlord and the tenant. Therefore, the First Appellate Court was very much right in confining its reasons so far as it relates to the relationship of landlord and tenant and the trial court committed mistake when trial court felt itself influenced by the alleged deeds of alleged title to the property when the title was not made an issue in the trial court. 10. In these circumstances, I do no find any force in this appeal and the same is hereby dismissed.Appeal dismissed. *******