HURMAT Vs. KARIM KHAN

JUDGEMENT

(1.) THIS appeal is directed against the decree and judgment dated March 30, 1978, passed by the Additional District Judge No. 2. Jodhpur, by which the learned Additional District Judge No. 2, Jodhpur, allowed the appeal filed by Karim Khan and dismissed the plaintiff -appellant's suit.

(2.) PLAINTIFF Mst. Hurmat, on January 13,1962, filed a suit in the Court of the Munsif City, Jodhpur, against Karim Khan for eviction and arrears of rent with respect to a ' Medi' in the house situated in Sindhiyon Ka Bas, inside Siwanchi Gate, Jodhpur. The case, as set -up by the plaintiff in the plaint, is that the plaintiff purchased the house situated in Sindhyon Ka Bas, inside Siwanchi Gate, Jodhpur, by a registered sale -deed from Poonam Chand. Poonam Chand and Chandan Raj purchased this house on October 7,1959, by a registered sale -deed executed by Karim Khan, Amardeen and Usman Khan (Sons of Allaha Rakha) and Mst. Dhapu (widow of Allaha Rakha). Chandan Raj thereafter, by a registered sale -deed Ex. B dated January 8, 1960, sold his share in the house to Poonam Chand. Poonam Chand, therefore, became the sole owner of this full house, who sold the house by a registered sale -deed dated August 27, 1962, in favour of the plaintiff Mst. Hurmat. Karim Khan (defendant) was inducted as a tenant by Poonam Chand in the Medi of the house in question on November 13, 1959, and a rent note Ex. 3 was executed by him in favour of Poonam Chand and Chandan Raj. The case of the plaintiff is that the defendant Karim Khan did not pay any rent to her since was given to him on September 11,1962, which was received by him on December 15, 1962, but the defendant Karim Khan did not pay the rent and thereafter by another notice dated July 3, 1963, the tenancy of the defendant Karim Khan was terminated by the plaintiff and the suit for eviction and recovery of arrears of rent was filed by the plaintiff against the defendant Karim Khan.

(3.) ON the basis of the pleadings of the parties, the learned Munsif City, Jodhpur, framed eight issues. The plaintiff, in support of her case, examined seven witnesses while the defendant, in support of his case, examined six witnesses. The learned trial Court, by its decree and judgment dated January 6, 1973, decreed the suit filed by the plaintiff. Dissatisfied with the decree and judgment dated January 6,1973, decreeing the plaintiff's suit, the defendant preferred an appeal before the learned District Judge, Jodhpur, which was transferred to the Court of the Additional District Judge No. 1, Jodhpur, for disposal. During the pendency of the appeal, the defendant moved an application under order 41 Rule 27 CPC for taking on record two documents i.e., the sals -deed Ex, A.3 dated October 7, 1959, executed in favour of Poonam Chand and Chandan Raj by Karim Khan and Ors. and Ex. A. 4 -the statement of Bhure Khan S/o Shri Shera Khan, recorded on September 14, 1 964 in Civil Suit No. 343 of 1362 (Fatima v. Mst. Hurmat). The learned Additional District Judge No. 1. Jodhpur, allowed the application under Order 41 Rule 27 CPC and ordered for taking these two documents on record. He, also, allowed the appeal filed by the defendant and remanded the case to the trial Court for taking additional evidence on the sale -deed and to decide the case afresh in accordance with law after recording the evidence. After the remand of the case, the plaintiff did not produce any evidence, but the defendant produced four more witnesses to prove the sale -deed. The learned Munsif City, Jodhpur, thereafter, by its decree and judgment dated September 1, 1975, again decreed the suit filed by the plaintiff. Dissatisfied with the decree and judgment dated September 1, 1975, passed by the learned Munsif City, Jodhpur, decreeing the suit of the plaintiff for eviction as well as for recovery of arrears of rent, the defendant preferred an appeal before the learned District Judge, Jodhpur, which was transferred to the Court of the Additional District Judge No. 2, Jodhpur, for disposal. The learned Additional District Judge No. 2 Jodhpur, by its decree and judgment dated March 30, 1 978 allowed the appeal filed by the tenant (defendant) Karim Khan, set -aside the decree and judgment passed by the trial Court and dismissed the plaintiff's suit. It is against this decree and judgment dated March 30, 1978, that the plaintiff -appellant has preferred the present appeal.