KUNTI DEVI Vs. RADHEY SHYAM

JUDGEMENT

(1.) THIS second appeal arises out of a suit for permanent injunction which the plaintiff sought against the defendants seeking to restrain the latter from dispossessing the former from a portion in house no. S. 15/15-16 situated in Mohalla Ghausabad in Varanasi. The plaintiff, in brief, claimed to be a tenant of the said portion and the defendant No. 4, Smt. Kunti Devi, was alleged to be the landlady. The defendants, Nos. 1 and 2, namely, Raj Kumarsingh and Harish Chandra, are the sons of the defendant No. 4 and the defendant No. 3. Maniram, is the husband of defendant No. 4. The portion in dispute was claimed to be in the tenancy of the plaintiff at the rate of Rs. 10/- per month and he also claimed that he had been doing his Motor Car repair work in the said accommodation. The plaintiff' s case was that even though he was a tenant at the said rate, the defendants never gave him a rent receipt even though as tenant he had been regularly paying the rent. It was alleged that the defendants were interested in enhancing the rent and as the plaintiff was not agreeable, therefore, the defendants were in a mood to evict the plaintiff from the accommodation in dispute even by force. In view of this threat, the plaintiff alleged that he was compelled to sue the defendants.

(2.) THE defence was that the suit had been filed collusively by the plaintiff in collusion with his father. It was denied that the plaintiff was the tenant in the portion in dispute. It was claimed that there were various tenants in the house and these tenancies were regularly witnessed by rent notes executed by the tenants and the rents paid by the said tenants were against receipts granted by the landlady. It was further alleged that formerly the accommodation in dispute was tenanted by one Chhakauri who remained a tenant up to 1961 and after his death, the said accommodation was got released and thereafter it continued to be in the occupation of the defendants and they kept their repairing and denting workshop in the said accommodation. THEreafter, it was alleged that the brother of the plaintiff Prem Chand was a mechanic and, therefore, the defendants kept him in their workshop during the period from 1957 to 1965. In 1965 Prem Chand died and thereafter, the father of Prem Chand and the plaintiff were kept in the said workshop. THEre were several complaints against the plaintiff' s father Munnu and, therefore, the defendants intended to remove him. When Munnu came to know of the said intention of the defendants, he got the instant suit filed by his son, the plaintiff.

(3.) IN this second appeal, on behalf of the defendants, Sri G. S. Srivastava, Learned counsel for the appellants, has questioned the correctness of the judgment of the lower appellate court on several grounds. IN the main these grounds can be categorised as follows : (1) The decision of the lower appellate court is based on evidence which was not proved and hence could not be treated as part of the record. IN this connection he referred to papers Nos. 7 and 8 of list 43-C (IN the Judgment of the lower appellate court, it has been wrongly said to be of list 48-C. The correct paper number of the list is 43-C) and to papers Nos. 92/2C and 9C/10. (2) The decision under appeal is very substantially based on events and materials which came into existence after the institution of the suit. IN this connection, he referred to the Commissioner' s report and to other materials which have been referred to and relied on by the lower appellate court. (3) The lower appellate court made the question of tenancy the subsidiary issue and though that the principal controversy was regarding the ownership of the workshop in the disputed accommodation. IN truth, the real and only controversy between the parties was whether the relationship of landlord and tenant existed between the parties or not. (4) The findings about the tenancy as well as about the ownership of the workshop were not supported by the evidence on record and the lower appellate court did not properly appreciate the material which supported the defendants' case as against the plaintiff. IN this connection, counsel referred to the fact that while the trial court disbelieved the witnesses in regard to the plaintiff' s allegation about the existence of the tenancy, the lower appellate court, without reversing the trial court' s rejection of the testimony of the said witnesses, relied on the same and wrongly decreed the plaintiff' s suit. The learned counsel for the appellants referred to Ext. 1 and Ext. A-5 and contended that the true effect of the documentary evidence was not appreciated by the lower appellate court.