R.R.K.TRIVEDI, J. - (1.) IN this petition counter and rejoinder affidavits have been exchanged between the parties and the learned Counsel have agreed that the petition may be decided finally at this stage.
(2.) DISPUTE in this petition is with regard to kothari measuring 8' x 8', situate in house No. 119/561. Darshan Purwa, Gumti No. 5, Kanpur City. Facts, in brief, giving rise to the dispute are that one Bansi Dhar Pal was owner of aforesaid house No. 119/561. He by a sale deed dated 16.8.1965 transferred the southern portion of this house in favour of respondent Nos. 3 and 4 and husband of respondent No. 5 and one Lal Singh. Petitioner No. 1 was tenant of the kothari and the shop on rent of Rs. 70 per month. Bansi Dhar Pal by another sale deed dated 8.2.1972 transferred the remaining portion of his house in favour of petitioner Nos. 1 to 3. After the sale deed dated 8.2.1972 the transferees of the southern portion of the house, namely plaintiffs served a notice on petitioner No. 1 to pay rent of the kothari in dispute and claimed that the same was transferred in their favour by the sale deed executed on 16.8.1965. However, as rent was not paid as demanded, a suit was filed in the Court of Judge Small Causes on 12/13.10.1972, numbered as suit No. 1909 of 1972 for realisation of the rent. In this suit petitioner No. 1 filed his written statement on 24.5.1973 and the title of the respondent Nos. 3 and 4 and husband of respondent No. 5 who were plaintiffs was denied. Another transferee Lal Singh was arrayed as defendant No. 2 in this suit. Petitioner No. 1 Bishan Singh claimed himself to be owner of the kothari in dispute on the basis of the sale deed dated 8.2.1972 executed in his favour and his sons petitioners No. 2 and 3. The relationship of landlord and tenant was denied. After petitioner No. 1 denied the title of the plaintiffs, an application was filed for withdrawal of the suit which was allowed by order dated 1.10.1975. However, before the aforesaid suit was withdrawn, respondents filed another suit, i.e. Original Suit No. 1133 of 1973 on 28.8.1973. This suit was filed for ejectment of the petitioners from the kothari in dispute and for declaration that respondents are owners thereof and also for realisation of the mesne profits for the period from 1.2.1972 to 1.8.1973 at the rate of 12 per mensem. The cause of action for the suit was mentioned in para 5 of the plaint which is Annexure 5 to the writ petition. For convenience, paragraph is being extracted below : "5. That the cause of action for the suit arose to the plaintiffs for the first time on 16.8.1965 when the plaintiffs purchased inter alia the suit property and thereafter on 24th May, 1973 when the defendant No. 1 filed Written Statement in the above mentioned Suit No. 1909 of 1972 challenging the plaintiffs' title to the suit property and claiming his own, again when the defendant Nos. 2 and 3 also denied the plaintiffs title to the suit property, the cause of action in regard to the alleged sale deed accrued to plaintiff No. 1 when defendant Nos. 1 to 3 asserted their alleged rights over the property aforesaid on the strength of the alleged impugned sale deed and refused to treat the plaintiffs as rightful owners of the same. This Court has jurisdiction to hear this suit." This suit was contested by the petitioners by filing a written statement on 23.1.1974 in which they reiterated their title over the kothari and denied the relationship of landlord and tenant. The trial Court by judgment and decree dated 15.7.1978 dismissed the suit. From the decree of the trial Court, Civil Appeal No. 404 of 1978 was preferred by the respondents which was allowed on 30.10.1981 and the suit was decreed. Petitioners preferred Second Appeal No. 3002 of 1981 in this Court from the appellate decree which was partly allowed by judgment dated 15.5.1985. The decree for declaration of title of the respondents over the kothari in dispute was maintained. However, the decree for ejectment of the petitioners and damages was set aside and the suit was dismissed to that extent. Judgment of this Court is Annexure 9 to the writ petition. This Court while refusing the decree for ejectment and damages observed as under :- " .... The trial Court has for good reasons recorded a finding that no independent relationship of landlord and tenant had been proved and this finding has not been set aside by the Lower Appellate Court nor any reason has been given for differing from the trial Court on this question. The legal position, however, remains that the appellants were tenants of the entire shop and even if they had acquired title to the property to the north including the shop, except of course the disputed room their tenancy in respect of the room would not cease. The tenancy would come to an end if the title of the entire shop in their tenancy had been acquired by them, but by partial acquisition of the property their tenancy right in the disputed room would continue to subsist. The plaintiffs, therefore, can succeed in obtaining a decree for possession against the appellants only if the appellants' tenancy had been forfeited by a notice in writing after denial of title and thus plaintiffs having failed to do, they cannot possibly succeed in getting a decree for possession also for damages."
(3.) THEREFORE , on 11.9.1985 respondents filed the present case, i.e. S.C.C. Suit No. 682 of 1985 for ejectment and for damages. The plaint of the suit is Annexure 10 to the writ petition. Petitioners contested this suit on various legal and factual pleas. The learned Judge Small Causes Court dismissed the suit by judgment and decree dated 19.4.1989 which was challenged in S.C.C. Revision No. 71 of 1989 which was allowed by respondent No. 1 by judgment and order dated 5.5.1990 and suit of the respondents was decreed. Aggrieved by the aforesaid judgment petitioners have approached this Court under Article 226 of the Constitution.;