MAYA WANTI Vs. RAJINDER SINGH

JUDGEMENT

(1.) This is an appeal against the judgment and decree of the lower appellate Court dated 20th March, 1974, In the suit filed by Smt. Maya Wanti plaintiff, she claimed possession of plot described in the plaint by boundaries. It was alleged that the defendants though tenants under the plaintiff in respect of the plot marked ABCD in the plan attached, had illegally occupied the plot in dispute and constructed a room thereon. Thus, they were tress-passers.

(2.) The defendants contested the suit and inter alia averred that they were no tress-passers but were in possession of the plot as tenants under the plaintiff. The following issues were framed on the pleadings of the parties :

(3.) The defendants preferred an appeal. The lower appellate Court confirmed the findings of the trial Court that the defendants had failed to prove that they were tenants on the plot in dispute under the plaintiff and, therefore, they were tress-passers to the extent of 2766 sq. ft. It was found that in view of the rent note the tenancy was only with respect to 1 kanal out of the total area of 3-1/2 kanals. The lower appellate Court observed that in the plaint the plaintiff had failed to incorporate the fact of her ownership of the plot in dispute, though the suit was on the basis of title and it was a material fact, and the same having not been pleaded, no decree for possession could be passed. Resultantly, the appeal was accepted and the suit was dismissed.