KHATOON DUKHTAR (D) THRO LRS Vs. NARAINI DEVI

JUDGEMENT

(1.) The present appeal has been filed under Order 43, Rule 1 (u) of CPC, challenging the judgment and order dated 22.9.94 passed by the Addl. District Judge No.3, Jaipur City, Jaipur (hereinafter referred to as 'the appellate court') in Civil Regular Appeal No. 11/94, whereby the appellate court while setting aside the judgment and decree dated 18.5.94 passed by the Addl. Munsif No.4, Jaipur City, Jaipur (hereinafter referred to as 'the trial court') in Civil Suit No. 160/84, remanded the matter to the trial court for deciding the two issues framed by the appellate court.

(2.) The short facts giving rise to the present appeal are that the original appellant-plaintiff Smt. Khatoon Dukhtar had filed the suit for eviction against the original defendant Kalu Dhobi. The said defendant expired during the pendency of the suit and the present respondents were substituted in his place. The original appellant-plaintiff died during the pendency of the present appeal and her heirs were permitted to be substituted in her place, as per the order dated 28.2.11. It was alleged in the suit interalia that the suit property being House No. 123, Maniharon Ka Rasta, Jaipur was the joint property of Gulam Moiududdin and his brother Saiduddin; and that after the partition of the said property, the said house came into the share of Saiduddin. According to the appellant-plaintiff, the appellant purchased the said property from the said Saiduddin by executing a registered sale-deed on 19.2.79. It was further case of the appellant-plaintiff that at the time when he purchased the property, the defendant Kalu was the tenant of Saiduddin in respect of the suit property. Since the said defendant Kalu did not pay the arrears of rent and committed defaults in making the payment of the rent, the suit was filed for recovery of possession of the suit house from the said tenant. The said suit was resisted by the defendant Kalu by filing the written statement denying the allegations and the averments made in the plaint contending interalia that Saiduddin was not the owner of the suit property and could not have sold the same to the plaintiff. The defendant also denied the title of the plaintiff and further contended that he i.e. the defendant Kalu was staying in the suit house as the licensee of the Gulam Moiduddin and after the death of Gulam Moiduddin, the property being Aatiyaraj was taken over by the PWD and that the said Kalu was paying rent to the PWD. It appears that the written statement filed by the defendant was amended contending interalia that he had purchased the property from PWD vide the sale deed dated 31.1.91 during the pendency of the suit and as such he had become the owner of the suit house. The trial court from the pleadings of the parties framed the following seven issues:-