YAMIN @ MEENU Vs. OM PRAKASH AND ANR.

JUDGEMENT

(1.) HEARD Sri Anil Sharma, learned Counsel for the Defendant -Appellant and Sri M.K. Gupta, learned Counsel who has put in appearance on behalf of the Plaintiff -Respondent. 2. This is a second appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 10.11.2010 passed in Civil Appeal No. 82 of 2010 by Additional District Court, court No. 5, Bijnor whereby Defendant's appeal has been dismissed and the judgment and decree of the trial court dated 25.08.2010 in Original Suit No. 187 of 1995 Om Prakash v. Mohd. Yasin and Anr. has been confirmed.

(2.) LEARNED Counsel for the Defendant -Appellant has submitted that the suit itself was not maintainable in the civil court since the Defendant was a tenant in the premises in question. He further states that the Plaintiff was not the owner or landlord of the property and hence he could not institute such a suit for injunction and possession. The further submission is that the courts below have committed an illegality in ignoring the judgment passed by this Court in Second Appeal No. 3153 of 1984 decided on 26.05.2010 since the property in that proceedings and the property in the present proceedings are the same. Learned Counsel for the Defendant -Appellant has referred to the judgment of the trial court and submits that the issues framed were as to whether the Plaintiff is the owner of the property in question and the Defendant No. 2 is the tenant thereof? The second issue framed was whether the civil court had jurisdiction to decide the suit?

(3.) SRI Anil Sharma has referred to the finding recorded on the aforesaid issues and states that in view of the averments made in the written statement and the oral statement given by the Defendant his case was clear that he is the tenant of the premises in question and the Plaintiff is not the landlord. He refers to the judgment in Second Appeal No. 3153 of 1984 for the said purpose and according to him the Defendant -Appellant was the tenant of the mother of the Plaintiff namely Brahmawati and, therefore, the courts have committed an error in disbelieving such plea taken by the Defendant and holding to the contrary that he is not tenant of the premises in question. Sri Sharma has further pointed out to the decision on issue No. 1 and states that the Plaintiff was never owner or landlord of the premises in question and finding to the contrary is illegal and without any evidence.