ABHISHEK AGRAWAL Vs. PURUSHOTTAM CHOUHAN

JUDGEMENT

(1.) THIS second appeal is directed against the judgment and decree dated 30-7-2005 passed by the 8th Additional District Judge, Raipur in Civil Appeal No. 1-A/2004 reversing the judgment and decree for eviction passed by the 5th Civil Judge Class-I, Raipur in Civil Suit No. 74-A/2000 vide judgment and decree dated 15-11-2003. Judgment and decree impugned are challenged on the ground that learned lower appellate Court while reversing the decree has not considered the entitlement of the Appellants for suit for eviction and also on the ground of maintainability of the suit that the lease was permanent lease, therefore, without completion of the period of lease premature suit for eviction was not maintainable.

(2.) BRIEF facts giving rise to filing of the present appeal are that the present Appellants/Plaintiffs are Bhumi Swami of the land in dispute i.e. Khasra Nos. 1798 and 1795 area 2 acres new Khasra No. 469 situated at Village Kesla. The land was given to the predecessor of Respondents namely, deceased Dayabhai on permanent lease for installing rice mill. Previously suit for eviction from the land was filed by the present Appellants against deceased Dayabhai and finally eviction claim was denied by the High Court and decided that the land was given to Dayabhai on permanent lease. After the judgment passed by the High Court, deceased Dayabhai filed an application for mutation of his name over the suit land on the basis of the judgment of the High Court and his name was mutated. The present Appellants preferred an appeal before the appellate Revenue Court and finally they lost their case before the Revenue Court (appellate Court) whereupon the present Appellants served notice to deceased Dayabhai for eviction under provisions of Section 111 of the Transfer of Property Act, 1882 (for short 'the Act of 1882'), but after termination of lease and demand of possession when the possession was not handed over, they filed civil suit for eviction. The present Respondents/heirs of deceased Dayabhai contested the claim and specifically pleaded that the land has been recorded in the name of their predecessor Dayabhai, and the present Appellants have lost their case up to the High Court, hence the present Appellants are not entitled for any eviction from the suit land. The property was on permanent lease to deceased Dayabhai.

(3.) JUDGMENT and decree of the trial Court were challenged before the lower appellate Court and the lower appellate Court has held that previously a suit was also filed between the same parties relating to same property and same cause of action, issues were also same, therefore, subsequent suit is not maintainable, and reversed the decree passed by the trial Court. The present second appeal is admitted on the following substantial questions of law: (1) Whether the order of Naib Tahsildar, Raipur passed on 28-3-1979, declaring Dayabhai, the predecessor of Respondent as occupancy tenant is without jurisdiction? (2) If yes, whether the finding record by the 1st appellate Court that the permanent lease being effective against the Defendant/tenant decree for eviction could not be passed, was contrary to law?