ASHOK KUMAR Vs. KRISHNA CHAND

JUDGEMENT

(1.) This appeal is preferred by the defendant No. 1 who has suffered a decree of possession from both the Courts. This Court vide order dated 24.2.1995 while admitting the appeal had formulated the following substantial question of law:-

(2.) The trial Court vide judgment and decree dated 31.3.1987 decreed the suit filed by the plaintiff. The aforesaid decree was affirmed in appeal by the lower appellate Court vide judgment and decree dated 30.1.1995. Being aggrieved by the aforesaid decree, the defendant No. 1 preferred the instant appeal. The instant appeal was decided vide judgment dated 09.5.2006 by this Court by which the matter was remanded to the appellate court to re-decide the appeal by taking into consideration the averments made in exhibit-P-30 i.e. the written statement filed by the father of defendants, namely, Late Sitaram in previous suit The aforesaid judgment was challenged by the plaintiff before the Supreme Court. The Supreme Court vide order dated 11.5.2009 set aside the judgment passed by this Court and remanded the matter to this Court to decide the matter afresh on merits.

(3.) Learned senior counsel for the appellant submitted that the father of the defendants, namely, Sitaram in the written statement (Exhibit-P-30) which was filed in the previous suit had denied the title of the father of the plaintiff as well as the relationship of landlord and tenant. It was further submitted that the plaintiff himself in paragraph 9 of the plaint had stated that sometime in the year 1949-50 the father of the plaintiff inducted one Sitaram in possession of the suit house as tenant Thus, the father of the defendants was in possession of the suit house since 1949-50. While inviting the attention of this Court to paragraph 18 of the plaint it was pointed out by learned senior counsel that plaintiff himself has stated in that father of the defendants had denied the title of the plaintiffs father. There is no evidence on record to show that the defendants are the tenants of the plaintiff. However, the courts below have travelled beyond the pleadings of the parties and have recorded the findings. In support of his submissions, learned senior counsel has placed reliance on the decisions of Privy Council reported in Siddik Mahomed Shah vs. Mt Saran and others, 1930 AIR(PC) 57 and of Supreme Court reported in and Nirod Baran Banerjee vs. Dy. Commissioner of Hazaribagh, 1980 AIR(SC) 1109