DEEN DAYAL RAM RATAN Vs. SITA RAM

JUDGEMENT

(1.) THE suit, out of which this second appeal has arisen, was instituted by the respondents against the appellant for possession of an accommodation and recovery of arrears of rent in respect thereof. Ejectment was claimed on the grounds specified in clauses (a),(b) and (i) of section 12(1) of the M. P. Accommodation Control Act, 1961. The suit was resisted by the appellant on several grounds. The trial Court upheld the plaint allegations that the respondents were the appellant's landlords, they having purchased the premises from his previous landlord Gyanchand and were entitled to recover rent from him. The grounds on which ejectment was claimed were, however, negated by it. Accordingly, the trial Court dismissed the claim for ejectment but, by stating that the respondents were entitled to get the entire rent deposited by the appellant in Court, impliedly decreed the claim for recovery of rent. Being aggrieved by the dismissal of their claim for ejectment, the respondents preferred first appeal before the Third Additional District Judge, Gwalior. In that appeal, the appellant filed a cross -objection contending, among other things, that he was not proved to be a tenant of the respondents. The first appellate Court confirmed the finding that the appellant was tenant of the respondents. The grounds on which ejectment was claimed were also upheld by it. Finally, the appeal was allowed. The claim for ejectment was decreed and the amount of rent deposited by the appellant in Court was permitted to be withdrawn by the respondents. The cross -objection was dismissed. Being aggrieved thereby, the defendant preferred this second appeal, which was admitted only on the following substantial questions of law.

(2.) THE same principles would be applicable in the case of a memorandum of cross -objection also filed under Order 41, Rule 22. That is to say, raising grounds in the memorandum of cross -objection is not sufficient to show that a particular point was actually argued or pressed before the Court at the time of hearing. If the Court expressly says that only certain points have been argued and no other point has been argued, the statement in the judgment has prima facie to be accepted as correct. It is, of course, open to the party concerned to file a proper affidavit, preferably of the counsel who had argued the cross -objection in the lower Court on its behalf, that such a point had been raised but the Court recording the concession had done so either wrongly or under some misapprehension. It has not been contended, nor has any affidavit been filed, that the above -mentioned observation made by the lower Court in paragraph No. 27 of its judgment was wrong. That being so, it must be held to be correct. It follows that the points which were actually raised before it in support of the cross -objection at the time of hearing were decided by it and that the points left undecided by it were not actually raised before it at the time of hearing. Thus, the lower Court cannot be held to have committed an error of law in leaving the points which, though stated in the memorandum of cross -objection, were not raised or pressed at the time of hearing. However, according to the contents of the memorandum of the present appeal, only two contentions, raised in the cross -objection filed in the lower Court, were not considered. Those points are mentioned at (g) and (h) under the heading "SUBSTANTIAL QUESTIONS OF LAW" in the memorandum of appeal. The first point is that the lower Court did not consider the objection that the appellant's application under Order 13, Rule 2 for permission to file certain documents was wrongly rejected by the trial Court. On perusal of the cross -objection filed in the lower Court, 1 find that such a contention was not raised therein. So, the appellant has no mouth to say that such a contention was wrongly left unconsidered by the lower Court. The only other point, according to the contents of the memorandum of appeal, is that the lower Court did not consider the contention that an amendment -application filed on behalf of the appellant had been improperly rejected by the trial Court vide order dated 25 -12 -1978. On perusal of the cross -objection, I find that such a contention was nowhere raised therein. The contention in the cross -objection was that the trial Court had committed a grave error of law in rejecting, vide its order dated 28 -12 -1978, the appellant's amendment -application dated 21 -12 -1978. On perusal of the trial Court's record, 1 find that no amendment -application dated 21 -12 -1978 was filed nor was any amendment -application dismissed on 28 -12 -1978. Therefore, no blame can be fastened unto the lower Court in this behalf also. The learned counsel for the appellant submitted that amendment -application had in fact been filed on 10 -7 -1978 and dismissed on 21 -12 1978. The cross -objection did not relate thereto and it was also never amended. Therefore, the counsel is not entitled to make the said submission.

(3.) THUS , my answer to the first question on which this appeal was admitted is in the negative. Question No. (ii) : -Ex. C -l is the rent -deed dated 1 -5 -1967 executed by the appellant in favour of Ganeshilal showing that the accommodation in question had been taken on lease by the appellant from Ganeshilal from 1 -5 -1967 for 11 months on monthly rent of Rs. 25 only. The entire house, of which the accommodation in question is a portion, was purchased by the respondent from Gyanchand by three registered sale -deeds dated 1 -10 -1971. Those sale -deeds are on record. According to the recitals of the sale -deeds, the house had been purchased by Gyanchand from sons of Ganeshilal by a registered sale -deed dated 27 -5 -1971. That sale -deed having not been produced and proved, the alleged sale in favour of Gyanchand was not proved. It is not disputed that Ganeshilal had already died before the date of the alleged sale in favour of Gyanchand.