SANGAT Vs. RAM KUMAR

JUDGEMENT

(1.) The facts leading to this Second Appeal are that the appellant (who has since died and whose legal representatives have been brought on the record) had filed a suit against the present respondent Ram Kumar for possession of a house situated in village Madha, District Hissar, on the ground that Prabhu, grand father of the defendant had taken this house on a monthly rental of Re. 1/- on 26th June, 1943. After the death of Prabhu, the defendant is claiming possession of the house as tenant as the latter's father, Chandgi had predeceased his own father. The plaintiff also claimed a decree for Rs. 36/- as arrears of rent for the period from 1st February, 1971 to 31st January, 1974. It was also averred in the plaint that tenancy of the defendant had been terminated by giving a notice, as required by law. The defendant contested the suit. He denied that the plaintiff was the owner of the house in dispute or that he (i.e. defendant) was in its possession as a tenant under him. Some other pleas were also taken by the defendant but those are not material for the decision of this appeal as the only questions those were argued before me were if the plaintiff was the owner of the house in dispute and if the defendant was in possession of the house as a tenant under him. The learned trial court found both these points in favour of the plaintiff. For rendering those findings, the court mainly placed reliance upon the judgment, copy Exhibit P.4 dated 27th April, 1973 rendered in a previous litigation between the parties in which the plaintiff was held to be the owner of the house in dispute and that the defendant was a tenant under him at that house. The learned court accordingly decreed the plaintiff's suit.

(2.) Feeling aggrieved, the defendant filed an appeal which was heard by learned Senior Subordinate Judge, Hissar. He held that the findings given in the earlier suit were not binding upon the defendant as that earlier suit filed by the plaintiff had been dismissed and the defendant had no right of appeal against the decree passed in that suit as he was not aggrieved of the decree. It was further held that the plaintiff had not been proved to be the owner of the house and that on the other hand the defendant was in possession of the house in dispute as owner since the times of his ancestors. Consequently, he accepted the appeal and set aside the decree passed by the learned trial Court and dismissed the suit.

(3.) The learned counsel for the appellant concentrated his argument upon the judgment, Exhibit P.4. Therefore, it becomes necessary to give some facts about that previous litigation. The plaintiff had filed that earlier suit in November, 1972 on the same allegations which have been made in the instant suit and for the same relief. In that suit also the defendant had denied the ownership of the plaintiff over the house in dispute or that he was a tenant under him. Those points were found in favour of the plaintiff. However, that suit was dismissed as the plaintiff had not given the requisite notice to the defendant terminating the tenancy. Exhibit D.5 is the copy of the decree-sheet passed in the suit. The relevant portion of that decree reads :-