PREM CHAND Vs. GHISI BAI

JUDGEMENT

(1.) The facts leading to this appeal are that the respondent No. 1, the plaintiff, filed suit against the appellants and the respondent Nos. 2 to 5 alleging therein that Shop No. 2, situated at Main Road, Bhimganjmandi, Kota, belonging to the plaintiff, was taken on rent by the father of the defendants, Sh. Jagan Nath, on a monthly rent of Rs. 30/- and after his death on 22.7.1971, the defendants are in possession of the same. The tenancy was monthly and the defendants have not paid rent since 10.3.1978 for 36 months amounting to Rs. 1080/-. Therefore, being defaulters, they are liable to ejectment. The plaintiff prayed for a decree of ejectment and arrears of rent. The defendant Nos. 1 to 7 filed a joint written statement denying the ownership of the plaintiff and alleged that the rent of the shop was fixed at Rs. 22/- per month during the time of Sh. Jagan Nath and it is still the same. One son and a daughter of late Sh. Jagan Nath have not been made a party in the suit. The father of the defendants, Sh. Jagan Nath, was tenant of Sh. Daulat Ram, the husband of the plaintiff, since Vaisakh Sudi 1 Samvat 2020, and of Kailash Chandra Jain Saraf since 3.4.1965 and, after his death, of Kailash Chand. It is wrong to say that he has not paid rent for the last four years as rent was paid from 3.4.1965 to 3.4.1966 to Kailash Chandra. No rent has been paid to the plaintiff as she is not entitled to it. A notice was received from the plaintiff in 1966 for paying rent on which payment of rent was stopped to Kailash Chandra also. Kailash Chandra filed suit against the father of the defendants for recovery of rent which was decreed by two Courts. The plaintiff had full knowledge of the sale of the shop to Kailash Chandra Saraf and his mother, Pushpa Bai, since 3.4.1965 but she had not filed any suit for getting the sale deed declared illegal. The possession of the defendants has become adverse against the plaintiff and as such, the suit is liable to be dismissed. On the pleadings of the parties, the learned Trial Court framed seven issues. After recording the evidence of the parties and hearing them, the suit was decreed on 19.7.2002. The appellants challenged the said judgment and decree by filing an appeal. After hearing the parties, the learned First Appellate Court dismissed the appeal by judgment and decree dated 7.2.2009, Hence, the appellants have challenged the aforesaid judgments and decrees by filing this second appeal.

(2.) The learned counsel for the respondent No. 1 has strenuously contended that even if the learned First Appellate Court has not passed any specific order on the applications submitted under Order 41 Rule 27 CPC, it does not make the impugned judgment illegal as this Hon'ble Court can consider those applications and the documents at this stage also. He has placed reliance in the case of Sohan Singh vs. Gurmej Singh and others, 2002 132 PunLR 329. He has also contended that the appellants being tenants cannot deny the plaintiff her title. He has also submitted that both the Courts below have concurrently decided the case against the appellants and no substantial question of law is involved in the appeal, hence it deserves to be dismissed.

(3.) I have considered the submission made by the learned counsel for the parties and gone through the record of both the Courts carefully.