DULARI Vs. IVTH ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) Respondent No. 3 Dr. Ram Dulare Tripathi (R.D. Tripathi in short) purchased the property from Saraswati Devi through registered sale deed dated 24.8.1971. He himself was tenant in a small portion of the said property. He filed S.C.C. Suit No. 266 of 1982 against Ram Karan Jaiswal (R. Jaiswal in short) (since deceased and survived by petitioners) before J.S.C.C. Gorakhpur), claiming therein that R. Jaiswal was tenant in a portion of the property purchased by him (R.D. Tripathi) on 24.8.1971 since before its purchase by him and that he (R. Jaiswal) had not paid rent since June, 1979. Relief for ejectment was sought on the ground of default. The suit was decreed by J. S.C.C. and the revision filed against the same was also dismissed hence this writ petition. Smt. Saraswati Devi, who executed the sale deed was wife of step brother of R. Jaiswal, i.e., Bhagwan Das (father of B. Das and R. Jaiswal was one their mothers were different).

(2.) The aforesaid sale deed dated 24,8.1971 was challenged through suits thrice, i.e.. in the years 1971, 1972 and 1973. In the year 1971 and 1973 the suits had been filed by R. Jaiswal himself. The first suit was dismissed in default and the other suit (O.S. No. 191 of 1973) was dismissed under Order VII Rule 11. In the year 1972 the suit was filed by the seller herself, i.e., Saraswati Devi against R.D. Tripathi being case No. 14 of 1972. The said suit was dismissed for non-payment of court fees as court fees was not paid after rejection of application of plaintiff of the said suit for permission to sue in forma pauperis. However, in the oral statement of R.D. Tripathi in the suit giving rise to the instant petition which is Annexure-3 to the supplementary affidavit he stated that in the suit filed by Smt. Saraswati Devi for cancellation of sale deed, both the parties entered into compromise. In the said statement he also stated that Smt. Saraswati Devi at that time was aged about 53-54 years and she was residing in the house even after the sale deed with his permission. In the said statement it had also come that B. Das husband of Smt. Saraswati Devi was also alive.

(3.) R. Jaiswal defendant pleaded that he was not the tenant but owner of the house in dispute. He also seriously questioned the ownership/ land lordship of R.D. Tripathi, J.S.C.C., who decreed the suit through judgment and decree dated 19.1.1988, held that after dismissal of 3 suits challenging the sale deed through which plaintiff of purchased the property it was no more open to the defendant to question the validity of the sale deed. However, it appears that the Court was basically concerned with the title of the plaintiff. The main thrust of the judgment is with regard to the title of the plaintiff and application of defendant for returning the plaint for filing before regular civil court under Section 23 of P.S.C.C. Act was also rejected. As far as the finding to the effect that defendant was tenant is concerned the same may be described as only cursory. Plaintiff nowhere stated that the tenancy of defendant (R. Jaiswal) came into existence before him or that he ever saw R. Jaiswal paying rent to Smt. Saraswati Devi. Smt. Saraswati Devi and her husband Bhagwan Das were best witnesses to prove the tenancy ; however, they were not examined by the plaintiff even though in his oral statement, he stated that Smt. Saraswati Devi entered into compromise with him meaning thereby that she was not on hostile terms with him regarding sale of the property.