LATE JASWANT MAL Vs. KAILASH NARAYAN

JUDGEMENT

(1.) THIS is a second appeal filed by the LRs. of Jaswant Mal, who was original defendant-tenant, against the respondent-plaintiff arising out of the judgment and decree dated 21. 2. 1983 passed by the learned Addl. District Judge No. 2, Jodhpur in Civil Appeal No. 38/82 by which judgment and decree dated 21. 1. 1978 passed by the learned Additional Munsiff No. 2, Jodhpur in Civil Original Suit No. 78/75 were confirmed and the suit of the original plaintiff for eviction of the original defendant-tenant from the suit premises on the ground of Sec. 13 (1) (c) of Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as `the Act of 1950') (material alterations was decreed.

(2.) THE facts giving rise to this second appeal, in short, are as follows:- One Shambhunath, who was the original plaintiff in the present suit, filed a suit in the Court of Munsiff City, Jodhpur on 22. 10. 1975 against the original defendant-tenant-Jaswant Mal for eviction of the original defendant-tenant from the suit premises on the ground of arrears of rent and on the ground that the original defendant-tenant had materially and substantially altered the suit premises stating inter alia that there is a building known as Amarnath Building situated outside the Jalori Gate, Jodhpur and in that Building, many shops and quarters have been constructed and one house in that Building was rented out by the father of the original plaintiff to the original defendant-Jaswantmal on the monthly rent of Rs. 22/-, the details of the rented premises are mentioned in para 1 of the plaint. It was further stated in the plaint that family settlement was arrived at between the family members of the father of the original- plaintiff and after that settlement, the disputed house came in the share of the original plaintiff-Shambhunath with effect from 1. 4. 1972 and the original-defendant was informed accordingly and since then, original-defendant was paying monthly rent to the original plaintiff-Shambhunath. It may be stated here that since in this second appeal, the question of arrears of rent is not in dispute, therefore, facts pertaining to that are not being mentioned here. THE main case of the original plaintiff, as set out in the plaint, is that in front of the house given on rent to the original-defendant-Jaswant Mal and some other houses belonging to the original-plaintiff, there is a vacant land and that vacant land was being sued for coming and out going and when the family settlement took place in 1972, there was passage of 15 feet in front of the house given on rent to the original-defendant, but the original defendant in that vacant land, which was in front of his rented house, without the permission of the original plaintiff-landlord, after putting stones and doing some masoining work, got constructed a chappar and by that construction, the original-defendant had illegally occupied the land belonging to the original plaintiff and thus, original-plaintiff is entitled to decree of eviction of the original-defendant from the suit premises. THE suit of the original plaintiff was contested by the original defendant by filing a written statement on 2. 4. 1976. In the said written statement, it was alleged by the original-defendant that he has not made any illegal encroachment by putting stones and by making construction of chhapra over the vacant land and that land was with him from the very beginning and simultaneously the alleged constructions were made earlier to the tenancy and this portion was in his tenancy and not only this, the father of the original plaintiff filed a suit on 20. 1. 1972 against the original defendant for eviction on this ground and the copy of the plaint is Ex. A/1 and that suit was withdrawn by the father of the original plaintiff and the order of withdrawal is dated 12. 9. 1972 Ex. A/2 and, therefore, now the suit filed by the original-plaintiff is barred by the principles of res-judicata. Hence, it was prayed that suit filed by the original plaintiff be dismissed. On the pleadings of the parties, the learned Addl. Munsiff No. 2, Jodhpur framed the following issues on 1. 7. 1976. *** In the Court of Addl. Munsiff No. 2, Jodhpur, two witnesses were produced and PW-1 Shambhunath was the original-plaintiff and DW-1 Jaswant Mal was the original defendant-tenant. After recording evidence of both the parties, the learned Addl. Munsiff No. 2, Jodhpur vide his judgment and decree dated 21. 1. 1978 decreed the suit of the original-plaintiff for eviction of the original defendant from the suit premises. THE learned Addl. Munsiff No. 2, Jodhpur decided the issues No. 2 & 4 in favour of the original plaintiff and against the original defendant in the following manner:- (1) That the case of the original defendant that the Bada was already constructed prior to his tenancy was not accepted by the learned Addl. Munsiff. It was also not accepted by the learned Addl. Munsiff that it was got constructed by the original defendant with the prior permission of the father of the original plaintiff. (2) That whatever was done by the original defendant, it was nothing, but unauthorised construction and it was on the portion which was adjacent to the rented premises and by doing so, original defendant materially altered the rented premises. Aggrieved from the said judgment and decree dated 21. 1. 1978 passed by the learned Addl. Munsiff No. 2, Jodhpur, the original defendant Jaswant Mal preferred an appeal before the learned District Judge, Jodhpur and the same was transferred to the learned Addl. District Judge No. 2, Jodhpur, the original defendant-Jaswant Mal preferred an appeal before the learned District Judge, Jodhpur and the same was transferred to the learned Addl. District Judge No. 2, Jodhpur. It may be stated here that during the pendency of that appeal before the learned Addl. District Judge No. 2, Jodhpur, the original plaintiff-Shambhunath sold the disputed property to one Kailash Narain and thus, Kailash Narain stepped into the shoes of original plaintiff and thus, became the plaintiff-respondent in the first appeal. THE learned Addl. District Judge No. 2, Jodhpur through his judgment and decree dated 21. 2. 1983 dismissed the appeal filed by the original defendant and confirmed the judgment and decree dated 21. 1. 1978 passed by the learned Addl. Munsiff No. 2, Jodhpur holding inter alia:- (1) That though the father of the original plaintiff filed a suit on 20. 1. 1972 in respect of illegal construction made by the original defendant and subsequently, that suit was withdrawn on 12. 9. 1972, but since that suit was simply withdrawn and was decided not on merits, therefore, no question of principles of res-judicata arises in the present case and the argument of the original defendant that the present suit of the original plaintiff was barred by the principles of res-judicata was rejected by the learned first appellate Court. (2) That it is very well proved by the evidence that the bada, which was got constructed by the original defendant, was on the land which was just infront of the rented house and that portion would also cover the premises, which were given on rent to the original defendant. Aggrieved from the judgment and decree dated 21. 2. 1983 passed by the learned Addl. District Judge No. 2, Jodhpur, this second appeal has been filed by the original defendant in this Court on 2. 4. 1983.

(3.) ON the other hand, the learned counsel appearing for the plaintiff-respondent argued that if the tenant puts up structure on adjoining space though it was not part of the rented premises, but since it was being used by the tenant for beneficial enjoyment, the act of the defendants-appellant should be covered by Sec. 13 (1) (c) of the Act of 1950 and thus, the decree of eviction of the defendants-appellants from the suit premises on that ground was rightly passed by both the Courts below.