Sibghat Ullah Khan, J. - (1.) HEARD learned Counsel for the applicant in the review petition/ respondent in the writ petition.
(2.) S .C.C. Suit No. 8 of 1981 was instituted by the petitioners landlords against original respondents No. 1 to 8 some of whom were alleged by the plaintiffs to be their tenants and rest sub -tenants of the tenants. J.S.C.C. in 1991 held that complicated question of title was involved and directed the plaint to be returned to the plaintiffs for filing before civil court. (The alleged tenants had claimed title in themselves.) Revision filed against the said order was dismissed. Through my judgment dated 18.09.2008, I allowed the writ petition, set aside both the orders passed by the courts below and directed the trial court/ J.S.C.C. to decide the suit. The main argument raised by the learned Counsel for the applicant is that the earlier judgment of this Court passed in Second Appeal No. 3246 of 1975 was not relevant and admissible under any of the Sections of Evidence Act. (Even though in the review petition no such point has been taken.) In my judgment, I mentioned that in the earlier litigation which culminated in the second appeal, Diwakar Dixit father of contesting respondents in the writ petition had admitted that he was the tenant of the present petitioners (and before them, of their predecessor in interest Raghubir Prasad). After the death of Diwakar Dixit, one of his sons also made similar admission. The High Court in the judgment of the second appeal clearly recorded the findings that as the tenant Diwakar Dixit continued to pay rent to Raghubir Prasad, predecessor -in -interest of the petitioners, hence auction purchaser was not in possession and Raghubir Prasad was in possession. On the basis of this finding, it was held that as auction purchaser was not in possession since long, hence his suit was barred by time.
(3.) IN the judgments challenged in the writ petition, both the courts below had held that High Court had allowed the second appeal on the ground of limitation and no finding regarding status of Diwakar Dixit as tenant had been recorded. In my judgment under review, I held that the High Court had clearly held that Diwakar Dixit was tenant. It was also the admission of Diwakar Dixit and after his death, one of his sons in the said case.;