VIDYA SHANKER Vs. SURESH CHANDRA

JUDGEMENT

(1.) Heard Sri Neeraj Kushwaha, learned counsel for appellant. None has appeared on behalf of respondent, though called twice. Since it is an old appeal of 1981 and is pending for the last 38 years and find no reason but to proceed ex parte to decide it and proceed accordingly.

(2.) This is a defendant's appeal under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred to as "CPC"), arising from judgment and decree dated 18.03.1981 passed by Sri Jai Prakash Narayan, Civil Judge, Etawah allowing Civil Appeal No. 118 of 1977. Lower Appellate Court (hereinafter referred to as "LAC") has set aside judgment and decree dated 11.04.1977 passed by Sri Ravi Narayan, IInd Additional Munsif/Judicial Magistrate, Etawah in Original Suit No.399 of 1973 (hereinafter referred to as "O.S.") . Plaintiff's suit was dismissed by Trial Court but appeal has been allowed. Hence this appeal by defendant.

(3.) Suit for delivery of possession of the house in dispute and damages for use of it and pendente lite was instituted by plaintiff-Suresh Chandra against sole defendant-Vidya Shankar alias Daroga. Plaint case, set up by plaintiff, is that house in dispute belong to one Shamsher Khan, who executed a sale deed dated 29.06.1968 registered on 03.08.1968 in favour of plaintiff and thereafter he got possession thereof. The said house was purchased by Shamsher Khan from its erstwhile owner Ram Gopal through a sale deed and at that time defendant was a tenant in the northern part of house, on monthly rent of Rs.5/- which was a month to month tenancy. Defendant was paying rent initially to Ram Gopal and thereafter to Shamsher Khan. After execution of sale deed and purchasing the house, plaintiff informed the above transaction to defendant and asked him to pay rent. In Octob AIRer 1968 when plaintiff went to the house for renovation/construction of rest part of the house which was not in tenancy, defendant raised dispute and also did not pay any rent. Consequently, by notice dated 14.12.1968 which was served upon him on 17.12.1968 his tenancy was terminated. Defendant replied the notice wherein even title of plaintiff was denied. Plaintiff filed suit in Small Cause Court but defendant raised dispute of title, hence plaint was returned and suit then was filed in a regular Court. Plaintiff claimed arrears of rent of Rs. 244/- for the period from 01.07.1968 to 25.07.1973 and pendente lite damages and delivery of possession of house in question.