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2005 DIGILAW 3012 (RAJ)

Dr. Jagdish Gargee v. Peshawar Trunk Factory

2005-11-17

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.-Heard learned Counsel for the appellants as well as learned Counsel for the Respondent No. 2. 2. Learned Counsel for the appellant submitted that tenant-respondent is no more in possession of the suit property and the suit property is now in possession of Bhagwan Das, who is son of deceased Smt. Puni Devi. Bhagwan Das was not party in the suit. Before this Court, said Bhagwan Das submitted an application under Order 1 Rule 10, CPC on 29.01.1992 on the ground that after the death of Smt. Puni Devi, who was his mother, he became owner of the property and the two Courts below adjudicated that will set up by the appellants is fabricated and unreliable piece of document creating no right in favour of the plaintiffs. The said Bhagwan Das stated that defendant Sant Ram is now in collusion with the appellants and he is not interested to contest the appeal with the result the present appellants may take advantage of the changed situation. Therefore, the applicant Bhagwan Das be impleaded as party in the suit. However, on 05.03.1993, the said Bhagwan Das got the application under Order 1 Rule 10, CPC dismissed as not pressed. The appeal was admitted, thereafter on 12.01.1998, substantial questions of law was framed in which the genuineness of Will in question is involved. 3. According to learned Counsel for the appellant since the suit was filed by the appellants against the defendant, who was tenant in the suit, therefore, the question of title and question relating to the title could not have been decided by the trial Court and the first appellate Court, but finding on the Will in question has been recorded by the two Courts below against the plaintiffs-appellants. In fact, the tenant had a limited right and he cannot get the Will declared cancelled or being invalid. Therefore, the appellants preferred this second appeal and in the appeal, the rival claimant Bhagwan Das himself submitted an application for being impleaded as party, but he knew that the question of genuineness, validity and legality of Will, will not be examined in the proceedings under the provisions of Rent Control Act, 2001, therefore, he must not have pressed the application for being impleaded as party. Otherwise also, in absence of the real contesting parties, the question about the genuineness and legality of the Will could not have been gone into by the two Courts below. 4. Due to subsequent event that the possession of the property is now with Bhagwan Das and no relief of eviction against the respondent can be granted in the suit of eviction filed by the plaintiffs on the basis of relationship of the landlord and tenant, therefore, the appellants want to withdraw the suit itself . 5. Learned Counsel for the Respondent No. 2 submits that the Respondent No. 2, Sant Ram already died. However, it is not in dispute that the firm is party as Respondent No. 1 in the appeal and the appellants want to withdraw their suit itself , therefore, in the facts and circumstances mentioned above and in the peculiar fact that the suit was between the landlord and tenant, it will just and appropriate to allow the plaintiffs-appellants to withdraw the suit itself because no useful purpose will be served due to subsequent event by deciding the substantial question of law relating to Will, which may not be relevant for any other purpose as the decision would have bound the respondents and appellants only. 6. In view of the above, the appeal of the appellants is dismissed as withdrawn.