TRIVENIDEVI NARAINDAS Vs. VIJAY MOHAN BOSE

JUDGEMENT

(1.) THIS is a revision petition under section 115 of the Code of civil Procedure (hereinafter referred to as the Code) arising out of the order dated 22-7-1974 in the Civil Original Suit No. 28-A of 1972 of the Third additional District Judge, Gwalior, whereby the trial of the suit has been stayed till the decision of Civil Original Suit No. 26-A of 1972, pending in his Court.

(2.) THE material facts, briefly stated, essential for the decision of the question in controversy are these: The applicant has filed this Suit No. 28-A of 1972 (hereinafter referred to as the present suit) against the non-applicant for his ejectment from House No. 34/3 (hereinafter referred to as the disputed property) and recovery of arrears of rent on 20-11-1974 on the basis of contract of tenancy. The applicant has, in her suit, alleged that she has purchased the disputed property vide registered sale-deed, dated 25-9-1967 and is in possession of it since then; that the non-applicant is occupying the suit property as a tenant from 1-12-1969 at a rent of Rs. 225 per month, acknowledging which he has executed a rent note in favour of the applicant on 5-12-1969 ; that the non applicant is in arrears of rent since 1-12 1969; that the tenancy of the non-applicant has been terminated by a registered notice dated 4-10-1971 since 5-12-1971, but the non-applicant has failed and neglected to vacate the disputed property and also to pay the arrears of rent.

(3.) THE non-applicant has, in his written statement, dated 15-3-1974 controverted the plaint allegations and has contended that he is the owner of the disputed property which has, in fact, been mortgaged with Kunjilal Verma, the son of the applicant for Rs. 10,000; but at the desire of the said Kunjilal verma, a sale-deed instead of a mortgage-deed was executed in favour of the applicant and the applicant and Kunjilal Verma both simultaneously, with the sale-deed, executed an agreement to re convey the disputed property for the sum of Rs. 10. 000 plus interest thereon at the rate of 2% per month within three years; and that the non-applicant is continuing in possession as the owner of the disputed property. It is further alleged that as it was not possible for the non-applicant to repay Rs. 10,000 with the accrued interest within the stipulated period, on 4-6-1970, another agreement was executed by the applicant in favour of the non-applicant according to which the applicant had agreed to re convey the disputed property by a registered sale-deed against a sum of Rs. 18,500 to the non-applicant within a period of two years from that date; that there was no contract of tenancy between the applicant and the non-applicant, the non-applicant has been in possession of the disputed property in part-performance of the aforesaid contract as an owner.