PREMLATA BAI Vs. GANI MOHAMMED

JUDGEMENT

(1.) This is plaintiffs' second appeal directed against the judgment and decree dated 16.3.1994 passed by Civil Judge, Bhawani Mandi, who thereby reversed the judgment and decree passed by the Munsif and Judicial Magistrate, Bhawani Mandi dated 1.8.1990 decreeing the suit filed by the plaintiff-appellants. The plaintiff-appellants filed the suit seeking eviction and recovery of rent/mesne profit against the defendants inter alia on the premise that father-in-law of plaintiff No. 1 Bal Mukund mortgaged three shops along with other attached properties with one Mulla Khan Ali by registered mortgage deed (Ex. 2) on 19.1.1953 for a sum of Rs. 4,999. It was a usufructuary mortgage. Two shops other than the disputed shop were redeemed on 27.12.1954 by paying Rs. 3,600 and third suit shop was redeemed on 19.11.1978 by paying a sum of Rs. 1,399. Endorsement to this effect was made by the mortgagee at the back of the mortgage deed. In between, the mortgagee had let out the suit shop to defendant-Narain Kumawat. Narain in turn had sub-let the said shop and parted with possession thereof, to defendant-Gani Mohammed. Upon redemption of the mortgage, the mortgagee Mulla Khan Ali gave notice to Narain to handover possession of the shop to the plaintiff-appellants vide Ex. 3. Plaintiff gave notice to Gani Mohammed and Narain vide Ex. 6 & 9, which Narain replied by Ex. 15. Plaintiff again through his Advocate served a notice on Gani Mohammed vide Ex. 12. Since defendant-Gani Mohammed did not handover possession of the property, plaintiffs filed suit for eviction as also for recovery of possession against him with the averment that upon redemption of mortgage, the tenancy created by the mortgagee came to an end and therefore defendant Gani Mohammed being a trespasser is liable to be evicted. In the alternative, it was submitted that since in reply to the notice by the defendant-Narain, Gani Mohammed now claimed to have executed a rent note in favour of Kalyan Mal, brother of plaintiff's husband Mohan Lal. In the alternative, but without prejudice to the main plea, it was pleaded that even if Gani Mohammed is to be treated as tenant on the basis of alleged rent note executed in collusion with Kalyan Mal, the decree of eviction under Rent Control Act may be passed because the premises were required by the plaintiffs for their bona fide and reasonable necessity. Plaintiff No. 1 being widow, had to maintain her family and bring up minor son and daughter. The prayer was made for recovery of possession and till the suit shop was not vacated, payment of compensation/damages at the monthly rate of Rs. 65.34 till filing of the suit and during pendency of suit, a sum of Rs. 20 as mesne profit per month.

(2.) The defendants-Gani Mohammed in the written statement substantially admitted averments of the plaint. Kalyan Mal in written statement denied that any rent note was got executed by him from Gani Mohammed. Gani Mohammed in his written statement submitted that he was in possession of the disputed premises for last 50 years and the property was purchased by his father. Thereafter, he submitted that he is its owner by adverse possession. He also denied title of the plaintiff in respect of the property as also relationship of landlord and the tenant.

(3.) Learned trial court on the basis of pleadings of the parties framed as many as 13 issues. Issue No. 1 was to the effect whether plaintiffs were legal heirs of deceased Bal Kumund. Issue No. 2 was whether the disputed shop was mortgaged with Mulla Khan Ali, which the plaintiffs got redeemed. Issue No. 3 was whether the disputed shop was in possession of defendant-Narain as tenant @ Rs. 6.00 per month during the pendency of the suit. Issue No. 4 was to the effect whether the defendant No. 1 Narain had sublet the shop to defendant No. 2 and if so what is its effect. Issue No. 5 was to the effect whether the plaintiffs needed the shop for bona fide and reasonable necessity. Issue No. 6 was to the effect whether the plaintiffs would face greater hardship than the defendants if the decree of eviction is not passed. Issue No. 7 was to the effect whether the plaintiffs were entitled to compensation of Rs. 65.34. Issue No. 8 was to the effect whether possession of the defendant-Gani Mohammad was adverse and what is its effect on the suit. Issue No. 9 was whether the suit did not lie within the jurisdiction of the Court. Issue No. 10 was regarding court fee. Issue No. 11 was regarding costs and Issue No. 12 was regarding relief. Issue No. 13, which was subsequently added after filing of the written statement, was regarding denial of title of the plaintiffs by the defendant-Gani Mohamed and on that basis right of plaintiffs for decree of eviction.