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2023 DIGILAW 1472 (RAJ)

Mohsin Ali v. Ramjan Khan Pahalwan

2023-08-02

MAHENDAR KUMAR GOYAL

body2023
JUDGMENT : Mr. Mahendar Kumar Goyal, J. - This civil second appeal has been preferred against the judgment and decree dated 06.11.1993 passed by the learned Additional District Judge No.4, Jaipur City, Jaipur (for brevity "the learned appellate Court") in Regular Civil Appeal No.100/1988 whereby, while allowing the appeal preferred by the respondents/defendants (for short "the defendants"), the judgment dated 09.02.1984 passed by the learned Upper Civil Judge No.4, Jaipur City, Jaipur (hereinafter referred to as "the learned trial Court") decreeing the Civil Suit No.3/1982 filed by the appellants/plaintiffs (for short "the plaintiffs") for eviction and arrears of rent, has been set aside. 2. The relevant facts in brief are that the plaintiffs filed a suit for eviction and arrears of rent against the defendants stating therein that Shri Ramjan Khan, the predecessor in interest of the defendants, had taken the subject premises comprising of a shop as described in Para 1 of the plaint from late Shri Asgar Ali, uncle of the plaintiffs, on rent @ Rs. 5/- per month. It was averred that after the death of Shri Asgar Ali, now, they are landlord. Eviction was sought on the grounds of default in payment of rent and material alteration in the rented premises. 3. The defendants in their written statement submitted that late Shri Asgar Ali had executed a will as also an agreement to sell of the subject property in their favour. It was submitted that their possession is protected under Section 53-A of the Transfer of Property Act, 1882 (for brevity "the Act of 1882"). It was averred that since, the defendants were owner of the subject property, the suit is liable to be dismissed. 4. On the basis of pleadings of the parties, the learned trial Court framed fourteen issues including relief. After recording the evidence of the respective parties, the learned trial Court decreed the suit vide judgment dated 09.02.1984. The civil first appeal preferred there against by the defendants has been allowed by the learned appellate Court vide judgment and decree dated 06.11.1993. 5. After recording the evidence of the respective parties, the learned trial Court decreed the suit vide judgment dated 09.02.1984. The civil first appeal preferred there against by the defendants has been allowed by the learned appellate Court vide judgment and decree dated 06.11.1993. 5. After hearing the parties, this Court, vide order dated 10.03.2006, framed following substantial question of law:- "Whether in the face of finding recorded by the Court of Munsiff Jaipur City (East) Jaipur in its judgment dated 24.09.1971 to the effect that the documents 'Will' and 'agreement' to sale do not create any propriety rights in favour of the defendants, bar of resjudicate could be applied against the plaintiff and whether such finding is not based on mis-reading of the judgment dated 24.09.1971." 6. Learned counsel for the plaintiffs submitted that the learned appellate Court erred in holding the documents; the Will (Exhibit- A-5) and the agreement to sell (Exhibit-A-2) to be proved on the basis of judgment dated 24.09.1971 passed by the learned Munsif Court, Jaipur Nagar East, Jaipur in Suit No.5/1968. He submits that in the judgment dated 24.09.1971, the aforesaid documents were not found to be proved by the learned Court. He, therefore, prays that the civil second appeal be allowed, the judgment and decree dated 06.11.1993 be quashed and set aside and the judgment and decree dated 09.02.1984 be restored. 7. Per contra, learned Senior Counsel for the defendants, supporting the findings recorded by the learned appellate Court, would submit that the learned Munsif Court has, vide its judgment and decree dated 24.09.1971, held the aforesaid two documents to be proved and in view thereof, no error was committed by the learned appellate Court in extending them benefit of Section 53-A of the Act of 1882 while dismissing the suit for eviction. He, therefore, prays for dismissal of the civil second appeal. 8. Heard. Considered. 9. The judgment dated 24.09.1971 reveals that the learned Munsif Court has recorded a categorical finding that the aforesaid two documents; the Will and the agreement to sell, stood proved from the statements of the witnesses with a further finding that the same did not confer any title upon the defendants. Indisputably, this finding has attained finality and would operate as res-judicata. Indisputably, this finding has attained finality and would operate as res-judicata. Further, a perusal of the judgment dated 06.11.1993 reveals that in addition to relying upon the findings recorded by the learned Munsif Court vide judgment dated 24.09.1971, the learned appellate Court has also relied upon the evidence of the defendants' witnesses Ikramuddin (DW-2), Jahur Ahmed (DW-3), the attesting witnesses and Ladli Prasad (DW-4), author of the documents, before holding the execution of documents; the Exhibits A-2 & A-5, to be proved. In view thereof, it cannot be held that the findings recorded by the learned appellate Court vide judgment and decree dated 06.11.1993 are based on misreading of the judgment dated 24.09.1971. Therefore, contention of the learned counsel for the plaintiffs does not merit acceptance. 10. However, without recording a finding that these documents conferred title in the subject property upon the defendants, the suit for eviction was dismissed by the learned appellate Court extending the defendants benefit of Section 53-A of the Act of 1882 inasmuch as they were found in possession of the subject property in part performance of the agreement to sell. Although, while deciding the issue No.13, it has been held by the learned appellate Court that while deciding the issues No.6 to 14, on the basis of Will dated 06.10.1963 (Exhibit-A-5) and agreement to sell dated 16.12.1963 (Exhibit-A-2), the defendants have been held to be owner of the property; but, this finding appears to have been recorded inadvertently and out of oversight inasmuch as while returning its findings qua the issues No.6 & 14, the learned appellate Court has nowhere held the defendants to be owner of the property on the strength of will and/or agreement to sell; rather, they have been extended benefit of Section 53-A of the Act of 1882. Even the learned counsel for the plaintiffs failed to point out any such finding recorded by the learned appellate Court while deciding the issues No.6 to 14. Even otherwise also, had the defendants been held owner of the subject property, there was no occasion for the learned appellate Court to have extended them benefit of Section 53-A of the Act of 1882. 11. In view of the aforesaid findings, the substantial question of law is answered in negative. No other substantial question of law is found to be involved in this civil second appeal. 12. 11. In view of the aforesaid findings, the substantial question of law is answered in negative. No other substantial question of law is found to be involved in this civil second appeal. 12. Resultantly, this civil second appeal is dismissed being devoid of merit.