GIRIRAJ PRASAD @ GIRIRAJ SHARAN Vs. BABULAL KASERA

JUDGEMENT

(1.) THIS second appeal under Sec. 100 of the Code of Civil Procedure, 1908 has been filed by the plaintiff -appellant against the judgment & decree of the first appellate Court dt. 22.09.1987 dismissing his appeal thereby upholding the judgment and decree passed by the learned Civil Judge Bharatpur dt. 02.04.1983.

(2.) FACTUAL matrix of the case is that plaintiff -appellant filed a suit against the defendant -respondent for eviction from the tenanted premises, which was a shop, inter -alia on the ground that this shop was gifted to him by a registered gift -deed dt. 06.04.1968 executed by Ramcharan Lal. He has thus become landlord of the shop. Suit was filed on the ground of : (i) denial of title of the plaintiff by the defendant, (ii) default committed by the defendant in paying of rent for more than six months and that (iii) the plaintiff required the shop for his reasonable bonafide necessity, for his own occupation for carrying on the business in weights, brass, iron and other metallic kaserat goods. According to the plaintiff, defendant had purchased two shops in front of the tenanted shop in dispute in the name of his son Hari Shankar and other in the name of his (defendant) wife Smt. Triveni Devi. He himself had been carrying on the business from one of these shops. Defendant in his written -statement denied that Ramcharan Lal, original landlord executed any gift -deed in favour of the plaintiff nor any such gift -deed was registered. Therefore, necessity of the plaintiff cannot be considered reasonable and bonafide. This has been done by the plaintiff in collusion with Ramcharan Lal only to ensure eviction of the defendant. It was denied that any default in payment of rent was committed and also denied that defendant had purchased two shops in front of the tenanted shop. Shops were purchased by his son Hari Shankar and wife of the defendant Smt. Triveni Devi from their own money and defendant was not in possession of any of them. Plaintiff filed rejoinder pleading that father of Ramcharan Lal filed a suit being Suit No.47/1955, which was decided on 06.04.1965 against the defendant and his father on the ground of default of payment of rent and reasonable bonafide necessity. Defendant deposited the arrears of rent and cost of the suit and got the suit dismissed. It was also pleaded that in the suit filed by the plaintiff against the defendant for fixation of standard rent, provisional rent was determined and same was not paid regularly in time for more than six months and therefore defendant too was a defaulter of second time, hence not entitled to any protection under the Rent Control Act, 2001. Alleged collusion between the plaintiff and Ramcharan Lal was denied. It was asserted that the plaintiff had been living separately from Ramcharan Lal and they are carrying on their business separately. Regarding purchase of the shops by the defendant, it was reiterated that those shops were purchased by not son of the defendant and defendant's wife but such purchase was made by the defendant from his own money. Trial Court dismissed the suit and the first appeal there against was also dismissed. Hence, this second appeal by the plaintiff.

(3.) SHRI J.P. Goyal, learned senior counsel appearing for the plaintiff -appellant has argued that allegation of defendant of gift -deed being fictitious and collusive document was clearly an afterthought because defendant himself on 06.04.1968 has admitted the correctness of the gift -deed in Suit No.105/1968 filed on 05.07.2008 wherein, standard rent of Rs. 35/ - was fixed. Thereafter, the defendant also treated the appellant as landlord and paid rent by money order to the plaintiff -appellant in the suit for determination of provisional rent therein, which fact is evident from the order dt. 05.07.1968 passed by the learned Munsiff Magistrate Bharatpur. Defendant is therefore estopped from questioning title of the plaintiff. Both the Courts below in the circumstances therefore erred in law in holding that there was no denial of title whereas, in former Suit No.110/1968, which was filed by the plaintiff for ejectment and arrears of rent regarding the very much shop, defendant filed written -statement on 13.02.1969, which was exhibited in this suit as Ex.6 in which he categorically denied title of the plaintiff. That suit was rejected on technical ground of non -service of statutory service required by Section 106 of the Transfer of Property Act. Even then, the title of the plaintiff was denied by the defendant, which is clearly evident there from. The Courts below have failed to consider the clear statement of PW2 -Ramcharan Lal that he had gifted the shop in dispute to the plaintiff -appellant therefore there can be no question of gift -deed being fictitious. Learned District Judge in Para 18 of the judgment having held that gift -deed was rightly executed in favour of the plaintiff but in later part of the judgment illegally held that the gift -deed is fictitious. Findings recorded by him thus suffer from irreconcilable contradictions. Learned Courts below failed to appreciate that plaintiff was grand -son of the sister of PW2 -Ramcharan Lal, which fact was admitted by Ramcharan Lal before the Court saying that he had brought up the plaintiff from childhood and gifted the shop to him out of love and affection so that he can start his own business.