OM PRAKASH Vs. HAR BHAJAN SINGH

JUDGEMENT

(1.) This is a defendant's second appeal arising out of a suit filed by the plaintiff-respondent Har Bhajan Singh for possession over Shop No. WB17/290 together with a phar (open land) in front of shops Nos. WB/17/289, 289A, 289/1 and 290 as shown in the map attached to the plaint. A sum of Rs. 345/- was also sought to be recovered as arrears of rent and damages at the rate of Rs. 15/- per mensem for wrongful use and occupation from 15-11-1966 till the date of actual possession. The appellant Om Prakash is a tenant and respondent Har Bhajan Singh is the landlord. The plaintiff-respondent had purchased a set of shops whose numbers have been mentioned above at an auction on 13th December 1964 held under the authority of Custodian, Evacuee property. Om Prakash was a tenant of the said shop bearing No. WB/17/290 as also of the phar in front of the shop. The case set up was that this shop in fact had two doors and as such the defendants appellants became a tenant of both these shops which has a main door as well as a phar. It was further alleged that a notice of demand was served upon the appellant but he did not pay the rent and as such he was a defaulter in the eye of law.

(2.) The appellant set up a defence that shop No. WB/17/290 did not contain two doors at all, that each door appertains to a different shop. The shop appurtenant to the western door is No. 290 while the shop appurtenant to the eastern door is No. 291. It was further alleged that the plaintiff respondent did not purchase shop No. 291 or the phar and as such the appellant was not the tenant relating to shop No. 291 or the phar. It was further alleged that no such auction had taken place as alleged by the plaintiff-respondent and in any case the sale certificate issued in favour of the plaintiff-respondent was wholly illegal and ineffective.

(3.) The trial court decreed the suit only for possession over the eastern shop. The suit in respect of the western shop and the phar was dismissed. The defendant-appellant filed an appeal before the lower appellate court, against the decree which was passed against him in respect of the eastern shop. The plaintiff-respondent also filed an appeal against the dismissal of his suit it respect of the phar but he did not file any appeal against the dismissal of his suit regarding the western shop. Both the appeals came up for hearing before the lower appellate court. The lower appellate court recorded a finding that the shop held by the appellant and assigned only on ration number, namely, WB/290 during the relevant period although initially there were two shops and that WB 17/ 290 represents both the shops of which the plaintiff-respondent is the owner by purchase. It was further held that the phar land in front of the shops was also included in the plaintiff respondent's purchase and that the appellant was a tenant in respect of both the shops bearing one rationing number WB 17/290 along with the phar in dispute. In view of these findings the lower appellate court exercising the power under Order 41, Rule 33, Civil P. C. allowed the appeal of the respondent and dismissed the appeal on behalf of the appellant and decreed the entire suit by judgment dated 21st March 1973. Against the judgment dated 21st March 1973 the present second appeal has been filed in this Court.