GOVIND SAHEY Vs. DEVENDER KUMAR MOOL CHAND

JUDGEMENT

(1.) The present appeal filed by the appellant-original defendant arises out of the judgment and decree dated 8.7.2008, passed by Additional District Judge No. 1, Ajmer City, Ajmer, (hereinafter referred to as the appellate court), in Civil Appeal No. 97/2005, whereby the appellate court has dismissed the said appeal and confirmed the judgment and decree dated 22.1.2002, passed by the Additional Civil Judge(JD)Kishangarh, Ajmer, (hereinafter referred to as the trial court) in Civil Suit No. 300/93.

(2.) The short facts, giving rise to the present appeal are that the respondent-plaintiff filed the suit against the appellant-defendant before the trial court seeking eviction of the Quarter No. 30(hereinafter referred to as the suit premises), and seeking damages. It was alleged in the said suit that the respondent-plaintiff had purchased the suit property in the execution proceedings of a decree passed against one Mazdoor Vastra Utpadak Sahakari Samiti Ltd. , (judgment-debtor, hereinafter referred to as "the Society") and the sale certificate was also issued in that regard by the Executing Court in favour of the respondent-plaintiff on 5.10.1972. It was further alleged that the suit premises was allotted by the said Society to the appellant-defendant on hire purchase basis as he was the member of the Society. It was further alleged that pursuant to the order passed by the Executing Court in an application filed by the respondent-plaintiff, under Or. XXI Rule 96 C. P. C. for handing over symbolic possession of the suit premises, the respondent-plaintiff had given notice of attornment to the appellant-defendant, however, the appellant-defendant failed to attorn the plaintiff as the landlord and also failed to pay any rent in respect of the said premises. The respondent-plaintiff again gave notice by registered post to the appellant defendant calling upon the appellant to attorn the plaintiff as landlord, which was replied to by the appellant-defendant claiming his title/ownership over the said premises. The respondent-plaintiff, therefore, filed the suit against the appellant-defendant seeking possession of the suit premises, which was the Quarter No. 30 and also for recovery of damages.

(3.) The said suit was contested by the appellant-defendant by filing written statement, contending interalia that the respondent-plaintiff was not the owner of the suit premises and the sale certificate issued in favour of the plaintiff was not effective in the eye of law. It was also contended that the allotment of the suit premises by the said Society to the appellant-defendant was as that of owner and not the tenant. The appellant-defendant also contended that the suit was not maintainable in view of the provisions contained in Or. XXI Rule. 95 and 96 as also Section 47 C. P. C, and that the suit was barred by law of limitation.