LAHU Vs. KAILASH MATASARAN GUPTA

JUDGEMENT

(1.) Being aggrieved by the judgment and decree dated 22.07.1999 passed by learned Additional District Judge, Amravati in Regular Civil Appeal No.294/1994 by which the learned lower Appellate Court reversed the judgment and decree passed by the trial Court dismissing the Suit of the respondent/plaintiff and instead decreed the Suit of the respondent/plaintiff for eviction of the appellant/ defendant from the shop premises, the defendant had filed the present Appeal in this Court.

(2.) The respondent/plaintiffSau.Rupabai filed the Suit for possession and for recovery of damages from the appellant/defendant vide Special Civil Suit No.122/1991 for shop in Municipal House No.130/2, Ward No.43 on Nazul Plot No. 4/3; Sheet No. 68B within the local limits of Amravati Municipal Corporation, as owner of the shop premises, having become the owner under a sale deed from the former owner Matasaran executed on 29th December, 1988. Matasaran was the original landlord/ owner and the defendant Lahu was that the original tenant. Matasaran leased out the suit shop by lease agreement dated 23.1.1984 which was exhibited as Exh. 68 on rent of Rs. 200/ per month. It is alleged that Matasaran had agreed not to evict the tenantLahu at any time and after his demise, Gaurishankar would be his heir who, also would not evict Lahu. Upon execution of sale deed in favour of Rupabai by Matasaran on 29.12.1988, he had intimated Lahu and asked him to pay rent in future to Rupabai. Rupabai then filed an Application before the Rent Controller under C.P. & Berar Rent Control Order, 1949 for grant of permission to issue quit notice to Lahu. At the same time, Lahu filed R.C.S. No.1041/1990 against Rupabai and Gaurishankar asking for the relief that Rupabai was not the owner of the suit property and the sale deed in her favour dated 29.12.88 was a nominal and bogus in order to evict him from the suit shop. The said suit filed by Lahu was dismissed and the decree of dismissal of his Suit became final. In the Rent Control proceedings, Lahu specifically took a stand that plaintiffRupabai was not the owner of the suit shop and, therefore, the proceedings before the Rent Controller were not maintainable. But according to him, Matasaran was the owner during his lifetime and thereafter Gaurishankar was to succeed as his legal heir to the suit shop. He, thus, set up title in Matasaran and Gaurishankar. The Rent Controller having found that he was unable to decide the title of Rupabai in the wake of specific denial about she being the landlady and Lahu being the tenant, dismissed the proceedings filed by Rupabai against which Rupabai had filed Appeal before the Appellate Authority which ultimately was withdrawn on 4.4.1995. Having come to know about the stand taken by Lahu, the tenant in her Rent Control proceedings which were filed by her on 4.6.1990, she filed the Suit in question namely S.C.S. No. 122/1991 for possession on the ground that there was a forfeiture contemplated under Section 111(g) of the Transfer of Property Act ( in short " the T.P. Act") so also estoppel under Section 116 of the Evidence Act. The learned trial Judge framed as many as three issues in the Suit, inter alia, whether Rupabai, the plaintiff proved that Lahu/defendant had forfeited tenancy and set up the title in third person, namely, Gaurishankar and the trial Judge answered the said issue in the negative i.e. against the plaintiff and consequently dismissed the Suit for eviction. Rupabai filed Regular Civil Appeal No.294/1994 under Section 96 of the Civil Procedure Code before the District Judge. The learned District Judge framed two points for determination :

(3.) At the admission of the Appeal, this Court framed the following two substantial questions of law on 3.12.1999: