ROCHAMAL Vs. HOOLASMAL JAIN

JUDGEMENT

(1.) THE appellant-plaintiff- Rocha Mal, filed a suit before the learned trial court for declaration and permanent injunction alleging therein that the suit premises measuring 10' x 8' initially was taken on rent from the defendants No. 1 and 2, namely, Hoolasmal Jain and Manoj Kumar Jain at a monthly rent of Rs.25/- by the father (Mool Chand) of the appellant-plaintiff on 26.01.1958. On the suit land, the father of the plaintiff, Mool Chand put a Cabin, in which he was doing the business of selling fruits and vegetable. The defendants No.1 and 2 were collecting rent from the father of the appellant-plaintiff in the capacity of agent of their uncle, namely, Meekchand and his wife Veero Devi. The plaintiff-appellant also started business of selling fruits and vegetable with his father, Mool Chand in the year 1959. The father of the plaintiff expired on 10.05.1989 and thereafter the plaintiff-appellant was doing the business of selling fruits and vegetable in the said cabin. The plaintiff further averred that defendants No.1 and 2 filed eviction suit in the Court of District Judge, Balotra being Civil Suit No.17/77 impleading the plaintiff as tenant over the suit land, however, his father (Mool Chand) was not impleaded as defendant-tenant in the said suit. Although the defendants No.1 and 2 sent a notice on 31.05.1977 through their advocate, however, the said notice was not replied by him. According to the plaintiff, the said suit No.17/77 was filed by the defendants on 14.09.1977 with a view to prepare title documents on their name as they were not having the title documents in their favour. The plaintiff's father intentionally was not party though at the relevant point of time, he was also alive. The said suit, however, was not contested by the appellant-plaintiff as he was assured that no prayer has sought against him. The said suit No.17/77 ultimately came to be decided on 01.05.1984, however, it was exparte qua him, therefore, execution cannot be made so far as the dispossession of the appellant concerned. The appellant-plaintiff thus filed suit for declaration and permanent injunction. The said suit came to be dismissed by the learned trial court on 12.10.1998. The first appeal preferred against the said judgment of trial court also came to be dismissed by the learned lower appellate court vide judgment and decree dated 13.09.2004 dismissing the first appeal (Civil Appeal No.13/1998).

(2.) LEARNED counsel for the appellant-plaintiff, Mr. Anil Vyas for Mr. S.D. Vyas, submits that since the possession of the suit premises, situated at main station road, Barmer, has been handed over to the respondents-plaintiffs-landlord, he does not want to press this appeal.