GULAB CHAND CHAURASIA Vs. RAM SEWAK

JUDGEMENT

(1.) THIS is the defendants' second appeal arising out of a suit for recovery of possession and damages and in the alternative the refund of the sale consideration along with interest thereon. The trial Court had dismissed the suit. On appeal that decree was set aside and this suit of the plaintiff-respondents for recovery of possession of the disputed shop as well as for the damages for use and occupation was decreed. Hence, this second appeal.

(2.) THE relevant facts which are not in dispute are that one Ram Narain Lal, the husband of the respondent 4 and father of the remaining defendants-respondents was the owner of the disputed shop and Swamidin was the tenant thereof. On 1.5.1953 Ram Narain Lal had filed a suit No. 231 of 1953 for eviction of Swamidin. Meanwhile, Ram Narain Lal filed another suit No. 613 of 1955 on 23.8.1955 for the same relief, namely, ejectment and damages against Swamidin but the suit was stayed under Section 10, C.P.C. During the pendency of these suits, Ram Narain executed a sale deed in favour of Ram Sewak and Ram Avtar, the present plaintiffs-respondents on 29.3.1966. Suit No. 231 of 1953 which was pending as a second appeal here was later withdrawn on account of defect in the notice under Section 106, T.P. Act. Eventually, on 28.2.68 suit No. 613 of 1955 was decreed and the appeal filed by Swamidin against that decree was dismissed on 24/25.4.1969. The second appeal filed by Swamidin was dismissed in default by the High Court on 7.9.1979. Meanwhile, Ram Narain Lal had died on 9.5.1973 and his heirs the present defendants-respondents were duly substituted in the second appeal. The second appeal which was dismissed in default was subsequently restored but was again dismissed on merits on 15.7.1980. In the meanwhile, the heirs of Ram Narain executed a-sale deed dated 28.1.1980 in favour of Gulab Chand the present defendant-appellant and thereafter in execution of the decree passed in suit No. 613 of 1955 Swamidin was evicted and possession was taken by Gulab Chand on behalf of the heirs of Ram Narain. This gave rise to the present suit No. 29 of 1980 filed by the plaintiff-respondent against the heirs of Ram Narain and Gulab Chand, the relief claimed being one of possession. The suit was dismissed by the learned Civil Judge but on appeal, it was decreed. Thereafter the present second appeal.

(3.) HAVING given the matter careful consideration, I find no merit in the above contention. It is apparent that before the suit can be dismissed on this ground, it must be found that the possession of the vendor and of his tenant Swamidin should have been open, hostile and adverse to the vendees. In the present case, however, a close scrutiny of the undisputed facts would demonstrate beyond doubt that the cause of action for the present suit arose only after 30.7.1980, the date on which Swamidin was evicted in execution of the decree passed in suit No. 613 of 1955 and the heirs of Ram Narain instead of handing over possession to the plaintiffs as contemplated under the sale deed allowed Gulab Chand to occupy the shop.