SANDHYA DEVI Vs. SUBHASH CHAND & ANR

JUDGEMENT

(1.) This Regular Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant/plaintiff (hereinafter referred to as the 'plaintiff') laying challenge to the judgment and decree dated 3.2.2009, passed by learned Additional District Judge, Fast Track Court, Hamirpur, H.P. in Civil Appeal No. 88 of 2000, whereby he affirmed the judgment and decree dated 30.3.2000, passed by learned Sub Judge, Ist Class, Barsar, District Hamirpur, in Civil Suit No. 205/98/92 and dismissed the suit filed by the plaintiff against the defendants/respondents (hereinafter referred to as the 'defendants') for possession.

(2.) The facts leading to the filing of the present appeal are that the plaintiff filed a suit for possession being owner of house-cum-shop situated in land comprised Khata No. 113, Khatoni No. 135, Khasra No. 943/291/2, measuring 3 marlas, out of Khasra No. 943/291, measuring 4 marlas, situated in Tikka Bhakreri, Tappa Bani, Tehsil Barsar, District Hamirpur (H.P.). It was averred that deceased plaintiff (Yog Raj) had constructed the house on the suit property in the year 1978-79 and it was let out to defendant No. 1 on monthly rent of Rs. 50/-. Later on the rent was enhanced to Rs.100/- and defendant No. 1 paid the rent up till 20.7.1990 and thereafter no rent was paid. It was averred that defendant No. 1 in connivance with defendant No. 3 got executed the sale deed in favour of defendant No. 2 for consideration of Rs. 13,000/- and on 30.8.1990 mutation was also attested. It was averred that the plaintiff came to know about the said sale deed in the year 1992, when he came to his native village when the defendant No. 1 refused to pay any rent. It was averred that the original owner defendant No. 3 had shifted his residence to Nurpur in the year 1966 and he never raised objection to the construction. The electric connection was installed in the house vide meter No. 81 in the year 1972 which remained in existence till 1992 and later on disconnected for want of payment of electricity charges. It was lastly averred that tenancy was terminated by way of notice and now the defendants No. 1 and 2 are trespassers over the suit property.

(3.) Defendant No. 1 resisted the suit filed by the plaintiff by filing written statement. Defendant No. 1 took various preliminary objections like estoppel, maintainability and locus standi. The averments of deceased plaintiff letting out the suit property in favour of defendant No. 1 on monthly rent, were denied. It was further averred that defendant No. 3 was the owner of the land as well as building. The said owner had inducted defendant No. 1 as tenant and later on vide sale deed dated 30.8.1990 had sold the suit property in favour of defendant No. 2. It was denied that the plaintiff was in hostile possession of the suit property.