RAJ KAMAL Vs. ANIL KUMAR

JUDGEMENT

(1.) The plaintiffs/respondents-Anil Kumar and Arvind Kumar had along with their mother Smt. Kamla Devi filed a suit being Original Suit No.144 of 2003 for the eviction of one Sundar Bai Yadav from the construction erected over certain portions of plot nos.807, 807/1, 808 and 809 situated in Mohalla Gwali Toli, Civil Lines, Jhansi.

(2.) The plaint case was that the husband of Kamla Devi and the father of Anil Kumar and Arvind Kumar upon his retirement had come to Jhansi and had filed an application under section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 which was numbered as P.A. Case No.39 of 1991. This application was allowed on 10.9.1998. The Appeal filed by the tenant being Appeal No.40 of 1998 was dismissed on 5.4.1999. When the execution of the decrees was filed on 10.11.1999, the father of the plaintiffs of the suit got possession on 10.11.1999 over the built-up portion over the plots in question. However, the south-west portion of the property in question which measured 28.8'' x 15.2" was malafidely taken into possession by the defendant of the suit Smt. Sundar Bai Yadav and when the plaintiff could not get possession over the abovementioned area by the Executing Court then he was forced to file a suit being Original Suit No.144 of 2003. This suit was contested by Smt. Sundar Bai Yadav. When the suit was decreed on 13.8.2007, the Court having found that the defendant was a trespasser over 28.8" x 15.2" of plot no.807, 807/1, 808 and 809, the defendant was directed to remove her construction which she had made as a trespasser. The defendant thereafter filed a First Appeal, which was also dismissed on 11.11.2009. The Second Appeal filed by Sundar Bai Yadav the defendant, was also dismissed by this Court when a Second Appeal being Second Appeal No.78 of 2010 was filed on 19.1.2010. The appellants in the instant case filed an application in August 2010. This application was filed when the plaintiffs-respondents had filed an execution application being Application No.1 of 2010 for getting the judgment and decree dated 13.8.2007 executed. This application by the appellants in the instant Second Appeal was filed under Order XXI Rules 97, 98 and 101 read with section 151 C.P.C. The allegations made in the application were that the applicants (who are the appellants here in the second appeal) had taken on rent the shop constructed over the plot which was the subject matter of the Suit No.144 of 2003 from one Smt. Sundar Bai Yadav (defendant of Suit No.144 of 2003) at the rate of Rs.200/- per month for the last 20 years. The further allegation was that the applicant no.2 had taken a room along with a latrine, toilet, store and kitchen and was in the possession of that portion for the last 15 to 16 years @ Rs.200/- per month. It was stated that the landlord Smt. Sundar Bai Yadav in collusion with the plaintiffs of Suit No.144 of 2003 had allowed the suit to get decreed and had desired the eviction of the applicants Raj Kamal and Bhagwati Prasad. It was further stated that the applicants Raj Kamal and Bhagwati Prasad were tenants in the shop and were protected by the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act , 1972. The further contention was that the proceedings of execution case No.1 of 2010 be stayed till such time as the rights of the applicants - Raj Kamal and Bhagwati Prasad were adjudicated. This application filed by the applicants Raj Kamal and Bhagwati Prasad was tried as a suit and upon finding, that the applicants, who were claiming to be tenants of a trespasser, had no right over the property the application No.34 of 2010 was dismissed on 11.1.2018. Since a decree was drawn, a First Appeal being First Appeal No.8 of 2018 was filed. This First Appeal was dismissed on 6.3.2019. Aggrieved thereof, the present Second Appeal has been filed.

(3.) Along with the Second Appeal, the appellants had also filed an application under Order XLI Rule 27 C.P.C. by which they had tried to bring on record, documents dated 25.11.1946, 19.12.1946 and 31.12.1943.