LAXMI LAKHANI Vs. RAJESH TAH

JUDGEMENT

(1.) The plaintiff/appellant herein has filed this appeal being aggrieved by judgment and decree dtd. 12/9/2023 (Annexure A-1) passed by 1st Additional District Judge, Bilaspur (C.G.), in Civil Suit No. 61-A/2018, whereby the suit filed by the plaintiff/appellant herein for vacant possession of suit property and grant of Rs.8,000.00 towards depriving her from the use of suit property with 18% interest from the date of receiving possession, was dismissed. The parties to this appeal shall be referred herein as per their description before the learned trial Court.

(2.) The case of the plaintiff, in brief, is that the suit property was ancestral property owned and possessed by Ram Kumar Tah. On 17/1/2018, the plaintiff had purchased the suit property from Ram Kumar Tah through two separate registered sale deeds and after the subsequent purchase, her name was recorded in the Nazul record. The tenant is residing in the ground floor of the suit property and the defendants have been residing in the first floor with the permission of the seller Ram Kumar Tah. Before purchasing the suit property, her husband had talked to the tenant and the defendants. The tenant had asked to continue the tenancy even after the purchase of the suit property and the defendants had asked to hand over the possession of the first floor to the plaintiff. It was further pleaded in the plaint that after the purchase, when the defendants were asked to hand over the possession of the first floor, the defendants did not hand over the possession to the plaintiff. Thereafter, the plaintiff, through her Advocate, sent a legal notice to the defendants through registered post on 3/7/2018 to hand over the possession of the first floor of the suit property. The defendants, by sending a reply to the notice, refused to hand over the possession saying that the boundary of the suit property is wrong and that the suit property belongs to them. The suit property was inherited to seller Ram Kumar Tah while he was a minor and since then he had ownership and was in possession of it. He had also got the patta of the suit property renewed from the Nazul department. The Nazul officer, after conducting a spot inspection himself and through an Inspector, determining the boundary mark of the suit property, has renewed the patta of it in favour of Ram Kumar Tah, which was never objected by the defendants, but after the plaintiff purchased the suit property, the defendants were claiming that it belongs to them. It was also pleaded in the plaint that the suit property is a commercial and residential complex situated in front of CIMS Hospital, for which the plaintiff would have received monthly rent of at least Rs.8,000.00, but due to not handing over the vacant possession by the defendants, she is suffering loss of this rent amount. Therefore, the plaintiff had filed this suit to get the vacant possession of the first floor of the suit land house from the defendants and to get intermediate profit @ of Rs.8,000.00 per month from 3/7/2018 till the date of possession with 18% interest on it.

(3.) The defendants/respondents filed their written statement and denied the plaint averments only having left the admitted fact. It was stated in the written statement that Madanlal Tah did not have any son named Rakesh Tah, whereas the plaintiff has made him a party as defendant No. 2, thus there is a defect of mis-joinder of the parties in the case. The plaintiff has stated in her plaint that an old twostorey house was built in Nazul land Sheet No.26, plot No.4/1 situated at Gondpara, whereas in the maintenance khasra presented by the plaintiff for the year 2011-12, Nazul land sheet no. 26, plot no.4/1 area 1350 sq.ft. situated at Gondpara is mentioned as kitchen-garden (Badi). The portion of the house in which the defendants No. 1 and 3 are residing was received by their father Madanlal Tah in mutual oral partition, on which they are residing since birth and are not the licensee of Ramkumar Tah. In the maintenance khasra filed by the plaintiff, Nazul land sheet number 26, plot no. 4/1, minor Ramkumar Tah, S/o Dharam Prakash Tah guardian (Wali) Dharam Prakash Tah was mentioned, which makes it clear that the suit property was not inherited by Ramkumar Tah from his ancestors, as such, it is not his ancestral property. The suit property is the property received by Madanlal Tah, father of defendants 1 to 3, in mutual partition, which is built on 2115 sq.ft. in sheet No.26, plot no. 2/4 in the maintenance khasra of Godpara Bilaspur, which was owned and possessed by their ancestor Fakir Chand, S/o Chananram Punjabi, which was received by his heirs after his death and thereafter by their father Madanlal Tah in mutual oral partition, on which defendants 1 and 3 have been residing. The shop and house were neither the property owned or possessed by Ram Kumar Tah in the past nor in the present. It was further averred that in the sale deed dtd. 17/1/2018, although in particular of sold property it was mentioned as permanent nazul sheet No.26, plot No. 4/1, area 675 sq.ft. and 675 sq.ft. respectively, but in the four side boundry mentioned in sale deed it has been written that shop and house built in sheet No.26, plot no. 2/4. The plaintiff had not received valid title of suit property from the sale deed dtd. 17/1/2018 executed by Ram Kumar Tah in favour of plaintiff as the seller of the suit property was not having any valid title of it. Since the shop and house are in their ownership and possession, which they have not sold and on the basis of execution of sale deed of other land, the question of vacating the shop and house by them or granting time for the same does not arise. Further, the suit property is not in the ownership and possession of the plaintiff, as such, question of receiving Rs.8000.00 as monthly rent does not arise. The plaintiff has started construction on sheet no.26, plot no. 4/1 area 1350 sq. ft. and at present the said construction has reached upto two storey, from which it is clear that the plaintiff is asserting her title and ownership through construction on plot no.4/1 and is also asserting her title and demanding possession on the already constructed house in plot no. 2/4 through the present suit. No cause of action has arisen for the plaintiff on 24/7/2018 or any other date, the plaintiff is not entitled to get any relief, hence the suit of the plaintiff may be dismissed.