BISHAN SINGH Vs. IIIRD ADDL. DISTRICT JUDGE

JUDGEMENT

(1.) IN this petition counter and rejoinder affidavits have been exchanged between the parties and the learned Counsel have agreed that the petition may be decided finally at this stage.

(2.) DISPUTE in this petition is with regard to kothari measuring 8' x 8', situate in house No. 119/561. Darshan Purwa, Gumti No. 5, Kanpur City. Facts, in brief, giving rise to the dispute are that one Bansi Dhar Pal was owner of aforesaid house No. 119/561. He by a sale deed dated 16.8.1965 transferred the southern portion of this house in favour of respondent Nos. 3 and 4 and husband of respondent No. 5 and one Lal Singh. Petitioner No. 1 was tenant of the kothari and the shop on rent of Rs. 70 per month. Bansi Dhar Pal by another sale deed dated 8.2.1972 transferred the remaining portion of his house in favour of petitioner Nos. 1 to 3. After the sale deed dated 8.2.1972 the transferees of the southern portion of the house, namely plaintiffs served a notice on petitioner No. 1 to pay rent of the kothari in dispute and claimed that the same was transferred in their favour by the sale deed executed on 16.8.1965. However, as rent was not paid as demanded, a suit was filed in the Court of Judge Small Causes on 12/13.10.1972, numbered as suit No. 1909 of 1972 for realisation of the rent. In this suit petitioner No. 1 filed his written statement on 24.5.1973 and the title of the respondent Nos. 3 and 4 and husband of respondent No. 5 who were plaintiffs was denied. Another transferee Lal Singh was arrayed as defendant No. 2 in this suit. Petitioner No. 1 Bishan Singh claimed himself to be owner of the kothari in dispute on the basis of the sale deed dated 8.2.1972 executed in his favour and his sons petitioners No. 2 and 3. The relationship of landlord and tenant was denied. After petitioner No. 1 denied the title of the plaintiffs, an application was filed for withdrawal of the suit which was allowed by order dated 1.10.1975. However, before the aforesaid suit was withdrawn, respondents filed another suit, i.e. Original Suit No. 1133 of 1973 on 28.8.1973. This suit was filed for ejectment of the petitioners from the kothari in dispute and for declaration that respondents are owners thereof and also for realisation of the mesne profits for the period from 1.2.1972 to 1.8.1973 at the rate of 12 per mensem. The cause of action for the suit was mentioned in para 5 of the plaint which is Annexure 5 to the writ petition. For convenience, paragraph is being extracted below : "5. That the cause of action for the suit arose to the plaintiffs for the first time on 16.8.1965 when the plaintiffs purchased inter alia the suit property and thereafter on 24th May, 1973 when the defendant No. 1 filed Written Statement in the above mentioned Suit No. 1909 of 1972 challenging the plaintiffs' title to the suit property and claiming his own, again when the defendant Nos. 2 and 3 also denied the plaintiffs title to the suit property, the cause of action in regard to the alleged sale deed accrued to plaintiff No. 1 when defendant Nos. 1 to 3 asserted their alleged rights over the property aforesaid on the strength of the alleged impugned sale deed and refused to treat the plaintiffs as rightful owners of the same. This Court has jurisdiction to hear this suit."

(3.) THEREFORE , on 11.9.1985 respondents filed the present case, i.e. S.C.C. Suit No. 682 of 1985 for ejectment and for damages. The plaint of the suit is Annexure 10 to the writ petition. Petitioners contested this suit on various legal and factual pleas. The learned Judge Small Causes Court dismissed the suit by judgment and decree dated 19.4.1989 which was challenged in S.C.C. Revision No. 71 of 1989 which was allowed by respondent No. 1 by judgment and order dated 5.5.1990 and suit of the respondents was decreed. Aggrieved by the aforesaid judgment petitioners have approached this Court under Article 226 of the Constitution.