LUNA KHAN Vs. LALU

JUDGEMENT

(1.) THIS appeal has been filed against the order passed by the learned Additional District Judge, Jaisalmer dated February 1, 1989 by which he allowed the appeal of the defendant-respondent, set aside the judgment of the learned Civil Judge, Jaisalmer, decreeing the suit for recovery of arrears of rent and ejectment and has remanded the suit for re-trial. By this order the learned Additional District Judge has framed two additional issues regarding comparative hardship and partial eviction and has amended issue No. 1 by adding words "as the owner". The facts of the case giving rise to this appeal may be summarised thus.

(2.) THE plaintiff-appellant filed suit No. 43 of 1982 in the Court of Civil Judge, Jaisalmer for the arrears of rent and ejectment against the defendant-respondent with the allegations, in short, as follows. On October 1, 1964, he let out the disputed premises to the defendant on monthly rent of Rs. 4/-. He executed a rent note in his favour. He paid rent for about three years. Thereafter, he did not pay the rent telling that he would soon vacate the demised premises. He has committed defaults in payment of rent. The demised premises is bonafide and reasonably required by him. The defendant admits in his written-statement that he is in occupation and possession of the disputed premises. All other allegations of the plaint were denied. He set up his own title in the suit premises. After framing necessary issues and recording the evidence of the parties, the learned trial Court decreed the suit holding that the suit premises was let out on October 1, 1961 by the plaintiff to the defendant on monthly rent of Rs. 4/-, rent note Ex. 1 was executed by him in his favour, he has committed defaults in payment of rent and the suit premises is reasonably and bonafide required by the plaintiff. The defendant filed appeal No. 7/87 before the learned Additional District Judge, Jaisalmer. After hearing the parties, he passed the order as said above.

(3.) IT is contended by the learned counsel for the plaintiff-appellant that the learned Additional District Judge seriously erred in amending the issue No. 1 by adding the words "as the owner" as in a suit for recovery of arrears of rent and ejectment the plaintiff is not required to prove his title in respect of the demised premises. He further contended that it is well proved from the evidence on record that the plaintiff let out the demised premises to the defendant on monthly rent of Rs. 4/- in the year 1964, rent note Ex. 1 was executed by him in plaintiff's favour and the existence of relationship of landlord and tenant in between the parties is well proved and the learned appellate Court has concurred with these findings of the trial Court. He lastly contended that the issue No. 3 was specifically on the denial of title, the defendnat admittedly denied the plaintiff's title by setting up his own title in respect of the demised premises in his written- statement and on this ground alone the learned appellate Court should have affirmed the decree of ejectment and should not have remanded the case. He relied upon Smt. Pushpa Sharma v. Gopal Lal Rawat, 1986 RLW 618 (FB).