KAMLESH SHARMA,J. - (1.)This is a Regular Second Appeal against the decree and judgment dated 14 -9 -1982 of Additional District Judge, Shimla, whereby the decree and judgment dated 31 -7 -1979 of Senior Sub -Judge, Shimla, was confirmed and the suit for possession filed by the respondent -plaintiff, Sh. Dhiraj Singh Bindra, was decreed in respect of the premises known as No 85 and 86, the Mali, Shitnia, against the appellants -defendants, S/Sh. Rawaii Singh and Nirmal Singh.
(2.)Premises No. 85 and 86, the Mall, Shimla, was an evacuee property. It was purchased by Sh. Bindra through a Benamidar, Sh. Devi Singh in a public auction held on 11 -12 -1967. Sale certificate was issued in favour of Sh Devi Singh on 26 -10 -1968 who further transferred the ownership of the premises to Sh. Dhiraj Singh Bindra through release deed dated 21 - -IS69. As per the allegations made in the plaint, Sh Bindra had initiated eviction proceedings against S/Sh Rawail Singh and Nirmal Singh on their mis -representation that they were tenants over the premises. Later, the eviction proceedings were withdrawn when Sh. Bindra learnt that their occupation was unauthorised and the present suit was filed.
(3.)S/Sh Rawaii Singh and Nirmal Singh resisted the suit, inter alia, on the grounds that since they were tenants, the Civil Court had no jurisdiction and Sh. Bindra was estopped from filing the suit by his acts, conduct and deeds. The trial Court decreed the suit holding that S/Sh. Rawaii Singh and Nirmal Singh were not the tenants and as such liable to pay damages at the rate of Rs i 25 per month as the premises had been used as hotel. The issues of jurisdiction and estoppel were also decided against S/Sh. Rawaii Singh and Nirmal Singh The findings of the trial Court were further confirmed in appeal by the Additional District Judge. In appeal an alternative case was also put up by S/Sh. Rawail Singh and Nirmal Singh that they were deemed to be tenants under section 29 of Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter called the Act of 1954) as they were in lawful possession of the premises before it was transferred to Sh. Bindra. The District Judge had negatived their plea that neither it was pleaded nor proved and also on merits. Hence the present second appeal.