ABDULAHED MOULVI ABDULSAMAD Vs. GULAMAHMED GULAMNABI BARDOLIWALA

JUDGEMENT

(1.) THIS revision application is directed against the judgment and decree of the learned Assistant Judge, Surat dismissing regular civil appeal No. 5 of 1967 with costs.

(2.) THE petitioners in the instant case are the original plaintiffs while the opponents are the original defendants. I will, therefore, refer to the parties as plaintiffs and defendants for the sake of convenience so far as this revision application is concerned.

(3.) FROM the pleadings of the parties, the learned trial Judge framed issues at Ex. 17. He held that deceased Gulamnabi had got the rent note executed through his son defendant No. 3, on 14 -6 -1951 as alleged. He also held that Gulamnabi and after his death, his heirs were bound by the terms and conditions of the rent note. He held that the suit land was used by the defendants for the purpose of doing business of fuel wood and thereby they had contravened the terms and conditions of the rent note. He also held that the defendants had unauthorisedly raised structures on the suit land in violation of the terms of the rent note. The learned trial Judge, however, held that the defendants were the contractual tenants of the suit land and as no notice for eviction was served on defendant No. 12, the said notice served upon other defendants was not sufficient to terminate the joint tenancy of the defendants. He negatived the allegation of the plaintiffs that the defendants had sub -let certain portion of the suit land. He also negatived the plaintiffs' submission that they required the possession of the suit land for their personal occupation. He also negatived the contention of the plaintiffs that the acts of waste were committed by the defendants. He, however, did not pass a decree for eviction in favour of the plaintiffs on the ground that no notice was given to defendant No. 12. He, therefore, dismissed the suit with costs. Against the said judgment and decree, an appeal was preferred in the District Court, Surat which was heard by the learned Assistant Judge. At the time of the hearing, it was further urged by the defendants that the plaintiffs were not entitled to get possession as their suit was barred by acquiescence. The learned Judge agreed with the findings recorded by the learned trial Judge and also held that the plaintiffs' suit was barred by acquiescence. He also held that the terms and conditions contained in the rent note Ex. 72 seemed to have been substituted by the terms and conditions incorporated in the receipt, Ex. 87 and hence the present suit could not be governed by the terms and conditions of the rent note Ex. 72. He, therefore, dismissed the appeal. Against the said judgment and decree of the learned Assistant Judge, the original plaintiffs have preferred the present revision application.