BHURA Vs. BAHADURSINGH

JUDGEMENT

(1.) This is the defendant-tenant's second appeal arising out of a suit for ejectment, and damages for use and occupation.

(2.) Tersely put and shorn of unnecessary details the case set up by the plaintiffs in the plaint was that Daluram, father of appellant No. 1 and husband of appellant No. 2 took on lease the premises described in para No. 2 of the plaint, situated in Alamsahar on payment of Rs. 2/-per annum as rent, and executed the rent note Ex. 1, dated Sawan Sudi 12, S. 1989 in favour of the plaintiffs. After his death the appellants continued to remain in possession of those premises on the same terms and conditions except that the rate of rent was enhanced from Rs. 2/- per annum to Re. 1/-per month. In support of their contention the plaintiffs placed reliance on the admission Ex. 13 made by Daluram, predecessor in interest of the defendants wherein he admitted that he was the tenant of the plaintiff in the disputed premises on payment of yearly rent of Rs. 2/-. They also placed reliance on Ex. 5, dated May 9/1955 alleged to have been filed by the defendants in reply to an application under Order XXI Rule 58 C.P.C. made by the plaintiffs in case No. 170/ 1950. In paras 3, 4 and 7 of the plaint it was averred that the defendants denied the title of the landlords and renounced their character as that of tenant. On the above grounds the plaintiffs claimed a decree for vacant possession of the premises and also for payment of Rs. 31/-as mesne profits. The appellant No. 1 Bhura remained ex parte and appellant No. 2 Mst. Chhoti contested the suit. She denied the ownership of the plaintiffs regarding the suit premises and also denied the tenancy. In reply to para No. 2 of the plaint she stated that neither the defendant No. 1 nor the defendant No. 2 was the tenant of the plaintiffs and they were within their right to make constructions over the suit property. On the pleadings of the parties the trial court framed 8 issues. The plaintiffs examined five witnesses in support of their case. The defendant-appellant Bhura did not appear in the witness-box and the appellant No. 2 Mst. Chhoti, besides her own statement, examined D.W. 2 Nathu. The trial court held that Ex. 1 was executed by Daluram (deceased). The learned Munsiff held that the admission recorded in Ex. 13 was made by Daluram in the court on July 17, 1934. Ex. 5 was also held to be proved. Placing reliance on the above- mentioned documents as well as on the statement of Bahanwarsingh and Lalsingh, and other witnesses examined on behalf of the plaintiffs, the learned Munsiff held that it was proved beyond doubt that the defendants were the tenants in the disputed house and it belonged to the plaintiffs. He also held that the defendants denied the title of their landlords and as such the plaintiffs were entitled to get a decree for eviction under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as Act No. XVII of 1950). While deciding Issue No. 6, the learned Munsiff observed that the tenancy was created at the time when the Transfer of Property Act was not in force, and as such the notice terminating the tenancy was not required to be given by the landlords to the defendants. In the alternative, it was held that the suit for eviction was based on the ground of denial of title by the tenants and as such the plaintiffs could file a suit and obtain a decrees for eviction without giving any notice of terminating the tenancy. On the basis of the above findings the learned Munsiff decreed the suit of the plaintiffs against the defendant- appellants before this court by his judgment and decree dated September 13, 1966. The appellant No. 1 Bhura did not challenge the judgment and decree of the trial court by filing an appeal, and the appeal filed by Mst, Chhoti appellant No. 2 was dismissed by the learned Senior Civil Judge No. 2, Jaipur City and the findings arrived at by the learned trial court were affirmed. The aggrieved defendant-appellants have come up in second appeal before this court.

(3.) Regarding the fact that the appellants are the tenants of the respondents the learned counsel for the appellant being conscious of the fact that it was a finding of fact has not challenged the same before this Court. The learned counsel appearing on behalf of the appellants has frankly conceded that he is not going to press the appeal filed by the appellant No. 2 but he will be pressing the appeal on behalf of appellant No. 1 Bhura.