KISHANLAL Vs. LRS OF KARUNA SHANKER & ANR

JUDGEMENT

(1.) This second appeal under Section 100 of Code of Civil Procedure, 1908, has been filed by the applicant-Kishanlal Dave S/o late Sh. Daya Shanker Dave, alongwith an application seeking leave of this Court to file the present appeal to assail the judgment and eviction decree dated 31.3.2012 passed by learned Addl. District & Sessions Judge, Bail District Pali in Civil Appeal No. 25 of 2007, LR's of Karuna Shanker v. LR's of Satya Narayan, by which the learned lower appellate Court below reversed the judgment and decree dated 31.10.2007 passed by the learned trial Court of Civil Judge (Jr. Division), Bali, District Pali in Civil Original Suit No. 243 of 1998 (54 of 1988), LR's of Karuna Shanker v. LR's of Satya Narayan; and also against the order dated 2.2.1993, by which application filed by the appellant for being impleaded as party-defendant was rejected by the learned trial Court.

(2.) The present applicant-Kishan Lal S/o Daya Shanker, has filed the present appeal claiming that he was adopted by one Smt. Janki Bai and he was in possession of the suit premises in question and, therefore, he should be permitted to challenge the said eviction decree of appellate Court below by way of present second appeal. The defendant-tenant, LR's of Satya Narayan, appears to have not filed any such appeal before this Court by now and no such fact is not brought to the notice of the Court by the counsels. The applicant, Kishan Lal had also made an attempt to be impleaded as party-defendant by filing an application before the learned trial Court under Order I Rule 10(2) C.P.C., however, the said application also came to be rejected by the learned trial Court vide its order dated 2.2.1993 as noticed by the learned trial Court while deciding the issue No. 4 as to whether the said Kishan Lal was a necessary party in the said Us or not. The applicant also assailed the said order dated 2.2.1993 by filing a revision petition before this Court being S.B.C.R.P. No. 298 of 1993 and that revision petition came to be dismissed by a Co-ordinate Bench of this Court vide order dated 25.5.1993 in the following terms: "This revision petition is directed against the order dated 2.2.1993 refusing petitioner's application for impleading him as a party in a suit filed by respondent No.1 against respondent No. 2 for eviction. The petitioner's prayer for impleading as a party is based on the ground that he is the owner of the suit premises as an adopted son of Jankibai. The plea of petitioner's ownership on the suit premises in a suit for eviction filed by Karuna Shanker against Satyanarain alleging Satyanarain to be his tenant is not at all relevant for the purposes of determining the interest of the petitioner in the property in question. Therefore, the application, in my opinion has rightly been rejected. It was next contended by the learned counsel for the petitioner that the plaintiff in this plaint has alleged the petitioner as sub-tenant and he is, therefore, a necessary party. The petitioner does not claim himself to be a sub-tenant and his application for impleading as party is not based on that ground. It otherwise the suit of the plaintiff is not properly constituted, it will be for the trial Court to consider. However, that does not affect the right of the petitioner so as to interfere in this revision petition. The revision petition is dismissed summarily."

(3.) Learned counsel for the appellant, Mr. Sandeep Shah, urged that since it was left open for the trial Court to consider as to whether suit was otherwise properly constituted or not; the present leave should be granted to the applicant to assail that eviction decree on the basis of adopted-deed.