Research › Search › Judgment

Rajasthan High Court · body

2008 DIGILAW 2139 (RAJ)

Bansi Lal & Anr v. Smt. Madhu Kumari

2008-09-11

PRAKASH TATIA

body2008
JUDGMENT 1. - Heard learned counsel for the parties. 2. The appeal has been preferred by the appellants defendants- tenants against the order passed by the First Appellate Court- Addl. District Judge No.2, Udaipur dated 20.8.2007 by which the First Appellate Court after reversing the finding on issue no.1 about relationship of tenant and landlord between the appellants and the respondent remanded the suit to the trial court for deciding the issues nos. 2,3,4,5 and 6 as the trial court did not decide the issues nos. 2,3,4,5 and 6 and on the ground that the plaintiff-respondent failed to prove the relationship of landlord and tenant between the plaintiff and defendants, therefore, there is no necessity of deciding the other issues. 3. Learned counsel for the appellants pointed out that the trial court carefully considered the evidence of parties and, thereafter, held that plaintiff failed to prove the relationship of landlord and tenant between the plaintiff and defendants. Learned counsel for the appellants submitted that no documentary evidence was produced by the plaintiff to prove that she purchased the property in dispute. The trial court, therefore, rightly drew adverse inference against the plaintiff and further plaintiff had no knowledge even about the number of the shops. In view of the above reason, the First Appellate Court has committed serious error of fact as well as error of law in reversing the finding on issue no.1 recorded by the trial court. 4. Learned counsel for the appellants further submitted that the First Appellate Court also rejected the respondent's-plaintiff's application filed under Order 41 Rule 27 CPC by which the plaintiff's-respondent sought permission of the court to produce evidence and that is the registered deed for the shop in dispute executed in favour of the respondent-plaintiff. In view of the above, there is no documentary evidence to prove the fact of purchase of property by the plaintiff. 5. Learned counsel for the respondent-plaintiff submitted that the defendants in their evidence very specifically admitted that initially they had no knowledge that the property was purchased by the plaintiff, but subsequently, they came to know that owner of the property in dispute i.e., the shop is plaintiff Smt. Madhu Kumari. 5. Learned counsel for the respondent-plaintiff submitted that the defendants in their evidence very specifically admitted that initially they had no knowledge that the property was purchased by the plaintiff, but subsequently, they came to know that owner of the property in dispute i.e., the shop is plaintiff Smt. Madhu Kumari. This fact was taken note of by the First Appellate Court and, therefore, after holding that relationship of landlord and tenant has been admitted by none-else-then the defendants themselves, therefore, there is no need to allow the application under Order 41 Rule 27 CPC. However, the application filed under Order 41 Rule 27 CPC also has been rejected on the ground of delay, but that could have been condoned by the First Appellate Court looking to the document and its credibility. 6. I considered the submissions of learned counsel for the parties and perused the record. So far as statement of defendant Bansi Lal is concerned, it is not in dispute that he admitted in cross-examination that after filing of the suit, he came to know that the owner of the suit shop is plaintiff Smt. Madhu Kumari. Learned counsel for the respondent submitted that even from the examination-in-chief itself it is clear that defendant admitted the ownership of the plaintiff and in view of the above reason, it cannot be disputed now. It appears that the defendants who may not have knowledge of the fact that plaintiff purchased the property in dispute, but subsequently, came to know that property was purchased by the plaintiff and therefore, become landlord of the defendant. 7. In view of the above reasons, I do not find any illegality in the order passed by the First Appellate Court in reversing the findings of the trial court and First Appellate Court rightly held that the relationship of landlord and tenant is established. Since the trial court has not decided issues nos.2,3,4,5 and 6, therefore, the First Appellate court rightly remanded the matter to the trial court for deciding those issues on merits. 8. Hence, there is no merit in this appeal and the same is hereby dismissed. *******