GULJAR ALI Vs. SAROJ DEVI

JUDGEMENT

(1.) The respondent, the plaintiff, filed a suit for ejectment of a shop situated at Mochiwara Road, Sikar on the ground of default and non-user against the appellant, the defendant. It was mentioned in the plaint that the father-in-law of the plaintiff, late Sh. Mohan Lal Jaipuria, was the owner of the shop and by his Will dated 13.03.1995 he gave it to her. The defendant was a tenant in the shop from the time of her father-in-law but did not deposit rent of Rs.140/- per month after 30.06.96 and thus committed default. It was further mentioned that the shop is not being used for the last three years by the defendant and is lying closed. The suit was contested by the defendant though tenancy was admitted. It was mentioned that he is not aware about the Will as no one informed him. It was also mentioned that after the death of Mohan Lal when he wanted to give rent it was not accepted and he was told that there is a dispute about the shop and rent will be taken by the person who becomes entitled to it in settlement / partition. The shop is being used by the defendant daily and there is no question of non-user. The wife of late Sh. Mohan Lal and his adopted son have not been impleaded as parties and the suit is bad for non-joinder. On the pleadings of the parties, six issues were framed on 08.04.99. Saroj PW-1, Vinod Kumar PW-2 and Vinod Kumar S/o Mohan Lal PW-3 were examined on behalf of the plaintiff. Will and receipts of rent Exts.1 to 3 were proved. Guljar Ali DW-1, Ibrahim DW-2 and Maqbool Ahmed DW-3 were examined on behalf of the defendant. After hearing the parties, the Trial Court decided issue no.1 in favour of the plaintiff and issue nos.2, 3 and 4 against the plaintiff. Issue no.5 was decided against the defendant. Consequently, the suit was dismissed on 10.12.03. The plaintiff preferred appeal against the said judgment and decree. The defendant also filed cross-objections. After hearing the parties, the Appellate Court reversed the finding of the Trial Court on issue no.2 and confirmed the findings of the Trial Court on other issues. In view of the aforesaid findings, the appeal was allowed and the suit was decreed for ejectment of the defendant. The defendant has filed this appeal under Section 100 C.P.C.

(2.) I have heard the learned counsel for the parties carefully and at length.

(3.) Learned counsel for the appellant has contended that the suit should have been remanded to the learned Trial Court by the learned Appellate Court as it did not agree with its findings. It was further contended that the courts below have not considered the entire evidence regarding payment of rent by the defendant though elaborate evidence was produced by him. His further submission is that the Will in favour of the plaintiff was not proved. Hence, substantial questions of law are involved in this appeal for adjudication by this Hon'ble Court.