AHMED (DECD.) Vs. SETH GHANSHYAM DASS (DECD.)

JUDGEMENT

(1.) THIS is a regular second appeal filed by the appellant against the judgment dated 20.04.2004 passed by the learned ADJ in RCA No. 58/1990 by virtue of which the judgment dated 16.01.1988 passed by the learned trial court was set aside and the suit of the respondent/plaintiff was decreed so far as the possession is concerned. The learned counsel for the appellant has submitted that substantial questions of law are arising in the appeal which deserve to be considered by this court.

(2.) BEFORE dealing with the so called substantial questions of law which are purported to be arising from the present appeal, it may be pertinent to mention that though the appeal was filed in the year 2004, however, despite the matter remaining pending before this court for more than a decade, no substantial question of law has been formulated till date as a consequence of which the court felt that instead of formulating firstly substantial questions of law and then hearing the appeal itself, it would be just and proper to hear the learned counsel for the appellant not only on the so called questions of law but also on merits of the same, if there is any question of law involved, and also decide the appeal in the light of the same.

(3.) THE admitted facts are that one Smt. Fatima Bi was the original owner of plot No. 737, Ward No. 6, which was measuring 600 square feet having two trees one of neem and other of baniyan with a gate. Smt. Fatima Bi had inducted Mohd.Ahmed and Mohd.Ishaq as tenants. Sh.Kedar Nath, the predecessor in interest of the respondent, had purchased the suit plot in a court auction somewhere in the year 1950 -51. Seth.Kedar Nath filed Suit No. 189/51 for ejectment against Mohd.Ahmed and Mohd.Ishaq. However, during the pendency of the suit itself, Seth Kedar Nath died on 06.05.1956. Sh.Ghanshyam Dass was substituted as the legal heir in place of Sh.Kedar Nath. During the pendency of the said suit, a compromise dated 08.06.1956 was entered into between the parties in the suit and accordingly the suit was decreed. By virtue of the said compromise, Mohd.Usman s/o Mohd. Ahmed was also made a tenant to avoid any objection by him in future. The tenancy was for a period of five years from 01.06.1956 to 31.05.1961 in terms of the lease deed which was duly registered vide Entry No. 3142 in Book No.II, Volume 342 at page 332 to 338 of the Sub Registrar. The vital terms and conditions of this lease deed were as under: