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2005 DIGILAW 117 (JHR)

Etwari Devi v. Lakhan Lal

2005-02-10

N.N.TIWARI

body2005
ORDER Narendra Nath Tiwari, J. 1. This appeal has been filed by the defendant- appellant(s) against the judgment and decree of affirmance. The plaintiff filed the suit for eviction against the defendant on the ground of default in payment of rent and personal necessity. The claim of the plaintiffs was that they had purchased the suit land by virtue of registered sale deed dated 6.6.1986. At the time of the said purchase there were tenants in different portions of the suit premises. The defendants were in occupation of a portion of the suit building. The said defendants had attorned to the plaintiffs after coming to know about their said purchase. According to the plaintiffs, in spite of the same, the defendants defaulted in payment of rent and thereby rendered themselves liable for eviction. The plaintiffs contended that they also require the premises bona fide and in good faith for their own used and occupation. 2. The defendants contested the plaintiffs claim and denied the relationship of landlord and tenant. According to the defendants, they have been in possession of the suit property, which is part of a Temple, named, Devi Mandap, in their own right, title. The defendants also denied the alleged attornment and payment of rent to the plaintiffs. They also disputed the plaintiffs claim of right, title, interest and possession over the portion, which is under their (defendants) occupation. They also disputed the description of the suit property, mentioned in the schedule of the plaint. 3. On the said pleadings, the trial Court framed several issues and decided almost all the issues in favour of the plaintiffs, holding the defendants as defaulter and accepting the plaintiffs claim of requirement of suit premises for their use and occupation. The suit was accordingly decreed. The defendants thereafter filed appeal, being Title Appeal No. 06/48 of 2002. The Lower Appellate Court, after consideration of the points, raised before him and also on fresh appraisal of oral and documentary evidences, upheld the findings of the trial Court and dismissed the appeal. Aggrieved by the said judgment and decree, the defendant has filed this appeal. 4. A petition for stay of execution of the impugned decree has been also filed. At the stage of hearing on the application for stay, the respondents also appeared through their Counsel. Aggrieved by the said judgment and decree, the defendant has filed this appeal. 4. A petition for stay of execution of the impugned decree has been also filed. At the stage of hearing on the application for stay, the respondents also appeared through their Counsel. With the consent of both the parties, the appeal itself was taken up for hearing under Order XLI, Rule 11, CPC. 5. Mr. Manjul Prasad, learned Senior Counsel appearing on behalf of the Appellants, submitted that the plaintiffs have sought eviction/ejectment of the defendants on the basis of acquisition of the suit property by virtue of sale deed dated 6.6.1986. The Sale deed is Ext. 1. Learned Counsel further submitted that had the sale deed been appreciated by the Courts below, the order of eviction of the Defendants Appellants could not have been passed. Learned Counsel further submitted the as a matter of fact, the defendants are not in occupation of the portion of the property or the premises, purchased by the plaintiffs, as the plaintiffs have purchased portion of M.S. Plot No. 2126, which corresponds to holding No. 1676 of Ward No. IIB, measuring 2 Katha 15 Chataks(ap-prox). Learned Counsel further submitted that he appellants are in occupation of the premises, which bears holding No. 1675 and it is beyond the purchased area of 2 Katha 15 Chatak of the plaintiffs. Developing his argument, learned Counsel submitted that in that view, the order of eviction of the defendant-appellant is wholly misconceived and the judgments and decrees of the Courts below are unsustainable. 6. Mr. Mihir Kumar Jha, Learned Senior Counsel appearing on behalf of the plaintiffs-respondents submitted that the decree of the Courts below never meant to operate beyond the land building and area, purchased by the plaintiffs and which admittedly corresponds to holding No. 1676 of Ward No. IIB, measuring an area of 2 Kathas 15 Chataks. Learned Counsel very fairly agreed that the area may be measured by a survey knowing Pleader Commissioner and the delivery of possession be effected on the basis of the description of the property mentioned in the sale deed of the plaintiff-respondents which in turn is the basis of the suit. 7. After hearing the parties and perusing the judgments of the Courts below, though I find no reason to interfere with the impugned judgments and decrees. 7. After hearing the parties and perusing the judgments of the Courts below, though I find no reason to interfere with the impugned judgments and decrees. Yet in my opinion, certain directions are required to serve the interest of justice, on the line almost agreed upon by the parties. This appeal is being disposed of with the following directions : (i) The plaintiff will deposit cost for appointment of the Pleader Commissioner who will go on the spot and will measure and ascertain the area and the extent of Holding No. 1676, Ward No. 11B of Ranchi Municipal Corporation at Hindpirhi in presence of parties by giving them prior notice in writing. The Court below will ensure that the notice has been positively served on the parties for that purpose. (ii) After taking measurement of the said holding, the report will be submitted in the Court below and after satisfying itself, the Court below will issue a writ of the delivery of possession on the said ascertained area of Holding No. 1676 in favour of the plaintiffs. (iii) If the defendants are found within the area of Holding No. 1676 they will be evicted in accordance with the terms of the decree. (iv) The execution process shall not be delayed on any other new ground. This appeal is, thus, disposed of.