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2005 DIGILAW 2892 (RAJ)

Shanker Lal v. Nandlal @ Mohanlal

2005-11-08

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.-Heard learned Counsel for the appellant as well as learned Counsel for the respondent. 2. The plaintiff-appellant filed the suit for declaration that he is tenant in the shop in dispute. According to plaintiff , the defendant-respondent took the rent @ 350/-per month upto 30.09.1997, but thereafter, the defendant refused to accept the rent. On 111.1997, the defendant tried to take possession of the property illegally, therefore, the plaintiff filed the suit for declaration and injection against the defendant. The defendant submitted written statement and stated that plaintiff is not his tenant and the suit property was let out to plaintiff s brother Amar Chand in the year 1969, particularly, on 28.03.1969. The suit property was vacated by Amar Chand and Amar Chand handed over the possession of the suit property to the defendant on 011.1997. He also executed a deed handing over possession of the property. The defendant submitted that on 110.1997, the plaintiff forcibly encroached upon the suit shop and filed this suit to protect his illegal possession. 3. The trial Court framed the issue whether the plaintiff is tenant in the suit shop or not and whether the plaintiff is entitled for relief of injunction. The plaintiff himself came in witness box, but did not produce any other witness. The defendant himself gave his statement and produced 6 witnesses. The plaintiff produced the registration certificate of the firm and also produced the account books to prove the payment of rent to the defendant and also produced the information, which he furnished to the Registrar of the Firms for the purpose of change in constitution of the firm and for renewal of the registration etc. The trial Court after considering the evidence, partly allowed the suit of the plaintiff holding that the plaintiff failed to prove himself to be tenant in the suit shop, but the defendant cannot dispossess the plaintiff without following due process of law. The Judgment and decree of the trial Court dated 211.1999 was challenged by the plaintiff by preferring appeal and defendant submitted cross-objection. The appeal and the cross-objections were dismissed by the first appellate Court by Judgment dated 29.08.2001, hence, this second appeal by the plaintiff . 4. The Judgment and decree of the trial Court dated 211.1999 was challenged by the plaintiff by preferring appeal and defendant submitted cross-objection. The appeal and the cross-objections were dismissed by the first appellate Court by Judgment dated 29.08.2001, hence, this second appeal by the plaintiff . 4. According to learned Counsel for the appellant, after the decision of this suit, the defendant filed suit for possession in Civil Court against the plaintiff and in that suit the trial Court recorded finding that originally Amar Chand was the tenant in the suit shop and, thereafter, plaintiff was also inducted in the firm as partner and presently, the plaintiff is in occupation of the suit shop. According to learned Counsel for the appellant, the trial Court dismissed the suit of the present defendant-respondent filed against the appellant-plaintiff of this case and the Judgment of that Court is relevant for the purpose of deciding this appeal. 5. According to learned Counsel for the appellant the appellant-plaintiff took the premises on rent on 07.09.1978 and he is in continuous possession of the suit shop whereas the story setup by the defendant is concocted story that the defendant-landlord took possession of the suit shop from plaintiff s brother Amar Chand and Amar Chand was tenant in the shop. It is also submitted that the plaintiff produced the documentary evidence, which clearly shows that plaintiff is doing business in the suit shop. According to learned Counsel for the appellant, the defendant-respondents subsequently filed suit has also been dismissed by the trial Court, but the learned Counsel for the respondent submitted that against the dismissal of the defendants-respondents suit for eviction of plaintiff-appellant, the respondent has preferred appeal, which is pending. 6. I considered the submissions of learned Counsel for the appellant. So far as any effect of decision given in subsequently filed suit is concerned, that is not relevant at all because the finding recorded in subsequent suit is not final because the appeal against the Judgment and decree of the trial Court is pending. Not only this, even the proceedings of this second appeal cannot be stayed because of the pendency of subsequently filed suit and there appears to be no reason for staying the proceedings of second appeal on the ground of defendants filing suit for possession after the decision of this case. Not only this, even the proceedings of this second appeal cannot be stayed because of the pendency of subsequently filed suit and there appears to be no reason for staying the proceedings of second appeal on the ground of defendants filing suit for possession after the decision of this case. So far as question, which has been raised by the plaintiff in his this suit relating to relationship of landlord and tenant can be decided only on the basis of the evidence produced by the parties in the present suit only. 7. I considered the contentions of learned Counsel for the appellant in relation to the claim of the plaintiff claiming himself to be the tenant in the suit shop. Principally this is a pure question of fact and the two Courts below have considered all the documents produced by the plaintiff including the registration certificate, which is being relied upon by the plaintiff to show that the plaintiff is in possession of the suit shop and running his business in the shop. It appears that the documents produced by the plaintiff itself contradicted the case of the plaintiff . The plaintiff in his plaint stated specifically that his brother Amar Chand has no relation with the suit shop and self -contradicting this fact, the plaintiff produced the registration certificate of the firm with Photograph of himself and of his brother and in the certificate said Amar Chand has been shown as partner of the firm. Therefore, it appears that the documents of creation of partnership have been created and manufactured after the commencement of the tenancy. The plaintiff s case in the plaint was that he was the sole tenant from very beginning whereas his document discloses that his brother was also remained partner, if the plaintiff s case is true and the documents of partnership are not created to get the plaintiff himself inducted in the suit shop. Since, the two Courts below have carefully considered all the relevant material and documents and circumstances and recorded finding of fact, this finding of fact cannot be interfered by this Court by exercising power under Section 100 CPC and there appears to be no reason for this Court to interfere in the said finding because this Court affirms the finding of the Courts below. 8. 8. In view of the above, I do not find any merit in this appeal and the same is hereby dismissed.