RAM DEO Vs. RAM NARESH

JUDGEMENT

(1.) Defendant No. 2 Ram Deo in S.C.C. Suit No. 7 of 1984, Ram Naresh v. Ram Shankar Gupta and Anr. has filed the present revision against the judgment and order dated 21st September, 1985, passed by 1st Additional District Judge, rejecting the contention of defendant No. 2, i.e., the present applicant to transfer the suit for trial on regular side and also rejected the application filed under Section 10 read with Section 151. C.P.C. to stay further proceedings of the suit till the decision of the earlier instituted Suit Nos. 70 of 1978 and 79 of 1984.

(2.) Plaintiff/opposite party instituted S.C.C. Suit No. 7 of 1984 on the pleas inter alia that Plot No. 372 area .7 decimal situate in village Sikridi Buzurg, P.O. Sikri Ganj, Tappa Parsi. Tehsil Bansgaon, district Gorakhpur is abadi on the spot and the same is the bhumidhari of the plaintiff and his brother. In the said plot the present applicant has half share and the remaining half belongs to the plaintiff and his brother Ram Swarup. On November 2, 1968, a compromise took place In between the plaintiff and Ram Deo (the applicant) in Suit No. 197 of 1961 in respect of the disputed plot as well other plots, it was agreed upon to divide the disputed property half and half. The said compromise formed part of the decree in Suit No. 197 of 1961. The parties thereafter raised constructions over their respective piece of land and the plaintiff constructed a house shown by red colour in the map at the foot of the plaint and let it out to defendant No. 1 on monthly rent of Rs. 225. Thus, the plaintiff is the owner and landlord of the disputed property of which defendant No. 1 is the tenant. Defendant No. 1 has sub-let the house in question to defendant No. 2. Provisions of U.P. Act No. 13 of 1972 are not applicable in view of the fact that the disputed property is beyond the territorial limit of the local authority. Defendant No. 1 in spite of service of notice dated 21.2.1984 failed to clear arrears of rent for the period November, 1982, onwards hence the suit.

(3.) The suit is being contested by the present appellant (defendant No. 2) by denying the plaint allegations. He has pleaded that the plaintiff and his brother have got construction over-plot No. 353 over an area of 9 decimal, whereas defendant No. 2 constructed disputed house over plot No. 373 on an area of 7 decimal and the said construction is standing for the last ten years and during consolidation operations the name of defendant No. 2 was recorded by the consolidation authorities. A compromise was arrived at before the Assistant Consolidation Officer in between the parties and an area of 5 decimal which was recorded in the name of defendant was chak out and given to other persons of the village. It was also pleaded that the constructions raised by defendant/applicant are existing on his own land with which the plaintiff has nothing to do. Defendant No. 2 after raising construction let out one shop to defendant No. 1 on monthly rent of Rs. 175 and defendant No. 1 has colluded with the plaintiff. The plea that the plaint should be returned for presentation to civil court as intricate question of title involved was also raised. It was also pleaded that the present plaintiff has already filed Suit No. 70 of 1978 pending before the Court of Munsif, Bansgaon and Anr. Suit No. 79 of 1984 pending before the Civil Judge IInd, Gorakhpur. These suits are in respect of disputed constructions and disputed land, therefore, it was pleaded that further proceedings in S.C.C. Suit No. 7 of 1984 giving rise to the present revision, being subsequently instituted suit, be stayed under Section 10 read with Section 151, C.P.C.