MAHILA SAMITI Vs. HOLA RAM SINDHI

JUDGEMENT

(1.) THIS appeal is directed against the remand order dated 12.7.2004 passed by Smt. Kanaklata Sonkar, III Additional District Judge, Satna in Civil Appeal No. 144-A/2003 remanding thereby the matter to the trial Court for fresh adjudication in the light of the directions contained in paragraph 20 of the remand order.

(2.) FACTS relevant for the purpose of present appeal are that the plaintiff- respondent instituted Civil Suit No. 104-A/2002 against the defendant- appellant for eviction from the suit premises which was decreed by the Court of III Civil Judge, Class-I, Satna on 17.4.2003 in favour of the plaintiff and the decree of ejectment was granted in favour of the plaintiff- respondent with rent/mesne profits @ Rs. 30/- per month till the actual ejectment. The defendant preferred Civil Appeal No. 144-A/2003. His main contention relevant for the appeal was that a land admeasuring 35682 sq. ft. was allotted by the Government of Madhya Pradesh to the plaintiff through Nazul Department on permanent lease. The plaintiff/society has constructed 20 shops out of which the suit shop was let out to the defendant's father in the year 1962 on rent @ Rs. 30 per month. The allotment letter (patta) was not produced by the plaintiff society. The defendant contended before the lower appellate Court that the total construction of 20 shops is situated on merely 2580 sq. ft. and the learned trial Judge ought to have determined that whether the shops are constructed on the land allotted to the plaintiff because the plaintiff could succeed only on the strength of proof about his title in respect of the suit shop. The learned lower appellate Court accepted the contention of the defendant and directed the plaintiff-appellant to produce the lease deed before the trial Court and the order of the Commissioner, Rewa Division in respect to the leased land. In the light of this direction the matter was remanded back to the trial Court for deciding it afresh after giving an opportunity of evidence to both the parties. The main submissions of the learned Senior Advocate for the appellant is that in view of the nature of the suit and the governing position of law, no remand was warranted and the learned lower appellate Court ought to have decided itself the appeal on merits. He drew the attention of this Court to the fact that tenancy is already admitted by the defendant-respondent and the rent was also used to be paid by him to the plaintiff-appellant. He drew the attention to paragraph 11 of the impugned remand order. Shri Prabhakar Rusia, learned counsel for the appellant strenuously argued that the defendant tenant is estopped from denying the title of the plaintiff-appellant and tenancy having been admitted, the plea dealt with by the learned lower appellate Judge for making a remand was not available.

(3.) I have considered the arguments of both the counsels. Admittedly, the suit is for ejectment of the defendant from shop No. 16 which is stated to be owned by the plaintiff society. The defendant in paragraph 3 of the written statement has admitted that his father was a tenant of the plaintiff society in the suit shop on rent @ Rs. 30 per month and the defendant being his son became the tenant of the plaintiff society after the death of his father. The defendant has further admitted that he used to pay rent by personal tender as well as by Money Order to the plaintiff.