JAMNA LAL Vs. PRAJENDRA NAHAR

JUDGEMENT

(1.) THIS second appeal under Section 100 C.P.C. has been filed by the defendant - tenant being aggrieved by the judgment and decree of eviction by the first appellate Court while allowing the plaintiffs appeal No. 57/2001 on 8.2.2006 reversing the judgment of the trial Court dated 13.2.2001 whereby the learned trial Court rejected the suit for eviction filed by the plaintiff on the ground of arrears, bonafide necessity of the plaintiff -landlord and also denial of title.

(2.) THE first appellate court in the impugned judgment dated 8.2.2006 has clearly found that the suit premises, namley, 60 x 40 ft. plot of land situated at plot No. 8, Boharwadi, Udaipur was given by way of a Will executed by father Sh. Daulat Singh, erstwhile landlord in favour of the present plaintiffs his two sons Prajendra Nahar and Azad Nahar and the said Will was duly proved by one of the attesting witnesses, Mr. O.P. Khabia, P.W.2 the son -in -law of testator Daulat Singh before the learned trial Court in accordance with Section 68 of the Indian Evidence Act, 1872 and the defendant - appellant failed to ask any question in cross -examination to the said P.W.2 demolishing his deposition and on the contrary D.W.I Jamna Lai tenant himself admitted the signatures of said Daulat Singh on Ex. 1 Will and therefore, the Itamed appellate Court upheld the right of the plaintiffs - respondents to file th suit for evicdtion on the basis of said Will and decreed the suit on the ground of personal bonafide necessity of the plaintiffs landlords, who wanted to construct their residential house on the said plot of land.

(3.) HE relied upon following judgments in support of his submission: i) Kashi Bai v. Parwati Bai - : (1995) 6 SCC 213 in which the Hon'ble Supreme Court held that' In the present case it was found by the trial Court that none of the witnesses to the Will had deposed that the deceased testator had signed the will before them and that they had attested it. This case is clearly distinguishable from the facts of the present case as one of the attesting witnesses, P.W.2 Om Prakash Khabia, son -in -law of testator Daulat Singh had clearly proved the said will before the learned trial Court and that has been accepted by the first appellate Court as duly proved in accordance with Section 68 of the Indian Evidence Act which clearly provides that if a document is required be law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. Admittedly one of the attesting witnesses P.W.2 Om Prakash Khabia has proved the said Will and the defendant - appellant failed to demolish the said deposition in his cross -examination in any manner. Moreover, it may be stated here that question of title is not relevant in rent control and eviction matters. It is well settled legal position of law and therefore, if the landlord -tenant relationship was held to be established on the basis of a Will being proved by P.W.2 Om Prakash Khabia, this Court finds nothing wrong in it.