SULTAN Vs. GANESH

JUDGEMENT

(1.) THIS is a civil appeal filed by the defendants appellants against the judgment and decree dated 21-9-81 of learned Addl. Distt. Judge No. 1, Jaipur City, by which the Judgment of Addl. Munsif (West) Jaipur City was affirmed and the suit of the plaintiffs-respondents for possession and rent was decreed.

(2.) BRIEFLY stated the facts of the case are that the plaintiff respondents purchased a plot No. A-! 1. measuring 50x90' in Rambabu-ka-Aahata, situated at Station Road, Jaipur, which is now known as Sen Colony. After the death-of Rambabu Sen. his son K. K. Sen became the owner of colony, the land was divided into plots and the scheme was approved by the Municipal Council. Father of the present appellants, Sultan and plaintiffs were living in Rambabu -ka-Aahata as tenants. Late Johari took on rent a piece of Land from K. K. Sen and executed a rent note on 23-1-1949. which came into force from 1-1-49 and was registered on 18-2-1949. Shri K. K. Sen executed a registered sale deed dated 15-4-1957 in favour of the plaintiffs. Therefore, the appellants become tenants of the respondents from 15-4-1957. The plaintiffs wanted to built a house for themselves on the disputed land. However, the appellants claimed to be the owners of the land. Therefore, the respondents filed a suit for permanent injunction against the defendants - appellants, which was subsequently withdrew on 6-7-1967. Thereafter the plaintiffs respondents filed the present suit for declaration praying that it may be declared that the plaintiffs were the owners of plot bearing No A-11 in Sen Colony and that the possession of such portion, which was in occupation of the defendants appellants be given to them and the rent and damages may also be awarded to them. The appellants in their written statements asserted that they were not the tenants of K. K. Sen or any other person and K. K. Sen had no right to sale the plot and also claimed adverse possession of more than 12 years and prayed that the suit of the plaintiffs be dismissed learned trial court framed as many as 9 issues after recording the evidence of both the parties and decreed the suit of plaintiffs and held that the defendants-appellants were the tenants of K. K. Sen and a decree of possession and rent was passed in favour of plaintiffs-respondents. The defendants-appellants preferred an appeal in the court of learned Addl. Distt Judge No. l. , Jaipur City, who confirmed the decree of the trial court and dismissed the appeal filed by the defendants appellants there after the defendant appellants preferred this civil second appeal, which came up for admission and was heard on 17-11-1981. In the memo of appeal as many as 11 substantive question of law, which was framed asunder :- Whether the defendants appellants can law fully be deemed to be in occupation of that area of the land in dispute, which is covered by the lease created in their favour on January, 23, 1949 as tenants under law ?. The court did not frame any other substantial question of law as framed by the learned counsel for the appellants and mentioned in the memo of appeal.

(3.) THE only matter that needs consideration is that the appellants who are in occupation of that area of land in dispute, which is not covered by the lease deed executed by them on January 23. 1949 are occupying the same as tenants under law and the respondent are entitled to get possession of this area of the land in dispute in these proceedings.