PUSHPA DEVI Vs. RAVINDRA KUMAR

JUDGEMENT

(1.) THIS revision petition is directed against the Order dated August 28, 1991 passed by the Additional District Judge, Bikaner dismissing the petitioner's appeal against the Order dated October 16, 1990 passed by the Munsif Magistrate, Bikaner by which the application of the petitioner -plaintiff for temporary injunction for staying the execution of decree passed in favour of non -petitioners Ravindra Kumar and Shantilal against Kishan Lal in Suit No. 41/87 be stayed.

(2.) IN previous suit instituted by Ravindra Kumar and Shantilal against Kishan Lal for evicting Kishan Lal from suit shop No. 4 situated at K.E.M. Road, Bikaner. Kishan Lal had denied the existence of tenancy between the plaintiff and himself which was evidenced by a rent note executed by Kishan Lal in 1970 and subsequently also in 1979. Kishan Lal and Hukam Chand who is the brother of Kishan Lal and husband of petitioner, both appeared in the witness box as defendant's witnesses. Kishan Lal stated that in the suit shop business is run by 'Mamla Stores' but he does not know who runs it. Hukam Chand in his statement has stated that suit shop was not taken on rent by Kishan Lal. He stated that in the said shop business is run in the name of 'Kumar Tailors' which is owned by his wife, present plaintiff, which shop has taken on rent from the plaintiffs. He also stated that though he has paid rent but he or his wife never received receipts for the same. In the said suit, the court found that the execution of rent note was duly executed by Kishan Lal in favour of the plaintiffs and on that basis existence of tenancy between Kishan Lal and plaintiffs was found to be duly established. The statement of Hukam Chand husband of present plaintiff was recorded in the year 1988. After decree was passed, the present plaintiff filed a suit alleging that she is a tenant in shop No. 4 in respect of which decree has been passed in favour of Kishan Lal. It was alleged that because of enmical terms between Kishan Lal and herself, Kishan Lal colluded for getting the suit premises vacated from the present plaintiff. The cause of enimity was staled to be that the plaintiff refused to enter into settlement which Ravindra Kumar, Shanti Lal and Kishan Lal. She, therefore, filed a suit for declaration that the decree dated November 9, 1989 passed in the previous suit is not binding on her and prayed for the permanent injunction with the decree holder in the earlier suit be restrained from executing the decree and securing possession of the suit shop.

(3.) BOTH the courts below have found that plaintiff has failed to prove a prima facie case in her favour. In arriving at this conclusion both the courts have placed reliance on the statement of plaintiffs husband Hukam Chand given in the earlier suit and the existence of the rent note.