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2005 DIGILAW 931 (RAJ)

Ramchander v. Hoolasmal Jain

2005-03-29

N.P.GUPTA

body2005
Judgment N.P. Gupta, J.-Heard learned Counsel for the parties. 2. The first submission made by the learned Counsel for the appellant was, that identical appeal being Appeal No. 321 of 2004 has already been admitted on 110.2004 after framing substantial questions of law, and therefore, this appeal should also be admitted. 3. It is significant to note, that admittedly the present appeal was also listed on 110.2004 alongwith the said appeal No. 321, and it is informed by learned Counsel for the appellant, that on that day this matter was also argued, but in view of paucity of time the arguments could not be completed, and the matter was continued on 110.2004, on which date adjournment was sought, and the case was fixed on 110.2004. I find a detailed order-sheet dated 110.2004, which shows that this precise submission was considered on that day, and it was found that the controversy involved in this case is different from the controversy involved in appeal No.321 of 2004, inasmuch as, the appellant in appeal No.321, being Rochamal, was a party in suit No.17/77 while the present appellant Ramchander, was not party therein. Likewise, in suit No. 17/77, the plaintiff had admitted Rochamal to be a tenant in occupation of the suit premises, and that the defendants No.1 to 4 therein were authorised to let out the property to Rochamal. However, in the present case, the appellant Rochamal is claiming to be tenant, which fact has neither been admitted, nor proved, and the suit is barred by time. In those circumstances, learned Counsel for the appellant sought time on that day to submit the complete facts about his right to remain in occupation as tenant, or heir of tenant, and the matter was adjourned. Since, then, for one reason or the other, the matter is being adjourned and comes up today. Thus, in view of the detailed order dated 110.2004, this submission of the learned Counsel for the appellant cannot be accepted. 4. Since, then, for one reason or the other, the matter is being adjourned and comes up today. Thus, in view of the detailed order dated 110.2004, this submission of the learned Counsel for the appellant cannot be accepted. 4. The second submission made is, that the learned Lower Appellate Court, in the penultimate para, has noticed that the Appellate Court vide order dated 212.1999 had framed 4 issues and remitted them for trial, which issues were decided vide order dated 07.02.2002, wherein issues No.1 and 3 were decided against the plaintiff , while issue No.2 and 4 were not pressed, and has further observed, that against those findings, no objections have been submitted by the appellant. It is contended by learned Counsel for the appellant, that as a matter of fact this recital is wrong, as the objections were submitted under Order 41 Rule 26 against the findings recorded in the order dated 07.02.2002, on 13.03.2002. According to learned Counsel, in that view of the matter, the impugned Judgment is liable to be set aside. 5. Having gone through the impugned Judgment s, it transpires that the main controversy in the suit is, as to whether the plaintiff-appellant has been able to establish to be in possession as tenant, or as heir of the tenant, being the descendant of Gehimal and Maganmal, who were said to be tenants in the year 1979. Since, facts of filing of the objections against the findings recorded vide order dated 07.02.2002 is not disputed by the learned Counsel for the respondent, exercising powers under Order 41 Rule 24, I thought it appropriate to consider the objections, said to have been filed on 13.03.2002, on their own merits, at this stage itself , and the learned Counsel was requested to point out, as to what are the objections raised against the findings dated 07.02.2002, and find though the objections are very lengthily drafted, but then the whole substance of the objection, as pointed out by the learned Counsel for the appellant was, that the defendant Hulasmal and Manoj Kumar did not appear in the witness-box, and the fact, that it was admitted position, that the present appellant was not a party in suit No.17/77, and therefore, the finding on remitted issue No.1, about the decree in suit No.17/77 being collusive, was required to be recorded in favour of the appellant. Regarding remitted issue No.3 it was submitted, that the suit was filed within three years from the date when his possession was threatened, and thereby he learnt that a fraud has been played, and thus it is within time, and therefore finding on this remitted issue was also required to be recorded in his favour. 6. I have considered the submissions and find, that may be that Hulasmal and Manoj Kumar did not appear in the witness-box, but then it is informed by learned Counsel for the parties, that after the issues were remitted, the plaintiff himself also did not get his statements recorded afresh on the issues, and was only additionally cross-examined by the defendant. The learned trial Court has also noticed that after remitting all the issues, the plaintiff Ramchander did not appear in the witness-box. Though the burden of the issue was upon him, and the two witnesses examined on behalf of the appellant being PW.2 Kishanchand, and PW.3, have not deposed anything on this issue. With this negativing the objection of the defendant, about the contention being barred by res judicata, the learned trial Court has considered the evidence and material on record threadbare, and has decided it against the appellant. In my view in the circumstances of the case non appearance in the witness box of the defendant Hulas Mal does not in any manner help the appellant. Even before me the whole thrust of the submission is that the appellant is the tenant within the meaning of Section 3 (7) of the Rajasthan Premises (Control of Rent and Eviction) Act 1950, and since he was not a party in that suit, and since that suit was filed against Hariram, the brother of the appellant, that is a collusive suit. 7. The learned trial Court has given detailed reasons for disbelieving the contention about the suit No.17/77 being not collusive, and for disbelieving the story propounded by the appellant in the present suit in that regard. In my view, the findings recorded in issue No.1 by the learned trial Court, in the order dated 07.02.2002 have not successfully been assailed, whether in the objections submitted purportedly under Order 41 Rule 26, or by the submissions made before me. In my view, the findings recorded in issue No.1 by the learned trial Court, in the order dated 07.02.2002 have not successfully been assailed, whether in the objections submitted purportedly under Order 41 Rule 26, or by the submissions made before me. The question as to whether the appellant is the tenant within the meaning of Section 3 (7) of the Rajasthan Premises (Control of Rent and Eviction) Act 1950, is the core question comprehended by issues No.1 to 6 in the main suit, and is not relevant for coming to the conclusion as to whether the suit was collusive or not, and the mere fact that the appellant was not a party in suit No.17/77, by itself does not render that suit to be collusive. 8. So far as the question of limitation is concerned, according to Article 59 of the Limitation Act, the limitation starts from the date, when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. In the present case, the learned trial Court has noticed, and both the learned Counsel read to me the statement of the plaintiff , recorded in the trial Court, wherein the plaintiff had admitted, that after passing of the decree in the suit No.17/77, the present appellant filed objections, that he is the real tenant, and not Hariram, and that objection was dismissed by the District Court, against which order he filed appeal before the High Court, which too was dismissed. In view of this positive statement of the plaintiff , I pointedly asked the learned Counsel for the appellant to inform, as to when that objection was filed, and as to whether the present suit has been filed within a period of three years from the date of knowledge as mentioned in that objection. Then learned Counsel clearly pleaded his inability to inform the date. In that view of the matter, when admittedly even during pondency of the suit No.17/77 itself , the appellant claims to have come to know that the suit was collusive, the suit filed on 212.1990 for cancellation of decree dated 18.05.1984 was rightly held to be time barred. 9. The last submission made is, that the impugned Judgment is not in accordance with the requirements of Order 41 Rule 31 CPC. 9. The last submission made is, that the impugned Judgment is not in accordance with the requirements of Order 41 Rule 31 CPC. Suffice it to say, that from a look at the issues framed by the learned trial Court, it is clear, that the issues No.1, 2, 3, 4, 5 and 6 are closely inter-related, and taking up the graveman of these issues, were rightly decided by the learned trial Court together, the learned Lower Appellate Court has considered the finding of the learned trial Court and has affirmed those findings. In that view of the matter, it cannot be said that the Judgment is vitiated on account of alleged non-compliance of Order 41 Rule 31. 10 No other point was argued. 11. Thus, this appeal does not involve any substantial question of law, and the same is, therefore, dismissed summarily.