MOOLCHAND KOTDIYA Vs. PARASCHAND VAIDYA

JUDGEMENT

(1.) This is defendants'/tenants' second appeal under Section 100 of CPC against the judgment and decree dated 31-3-2001 passed by the Additional District Judge, Mungeli in Civil Appeal No. 12-A/1998 affirming the judgment and decree dated 13-5-1998 passed by the Civil Judge Class-1 in Civil Suit No. 67-A/1991. The appeal was admitted for hearing on the following substantial questions of law:

(2.) Brief facts of the case are as under:

(3.) Shri Sanjay K. Agrawal, learned counsel appearing for the appellants/ defendants, would submit: the plaintiff did not enter into witness box to prove his case pleaded vide amended para 6 (a) of the plaint, and therefore, the learned Court below should have drawn adverse inference against the plaintiff and should have held plaintiff is not in bona fide need of the suit accommodation. For this reliance has been placed on the dicta of Supreme Court, in the cases of Iswar Bhai C. Patel Alias Bachu Bhai Patel v. Harihar Behera and another, 1999 3 SCC 457 and Vidhyadhar v. Manikrao and another, 1999 3 SCC 573. It was further contended, the defendants/appellants have denied the derivative title of the respondent but they have not denied their status as tenants and also have not claimed themselves to be the owner of the premises, and therefore, the plea raised by them does not amount to disclaimer of title within the meaning of Section 12 (1) (c) of the Act of 1961 and both the learned Courts below grossly erred in holding, the appellants/defendants have disclaimed title of the plaintiff. For this he relied upon dictum of the Supreme Court in the case of Sheela and others v. Firm Prahlad Rai Prem Prakash, 2002 AIR(SC) 1264.