- (1.) G. S. N. Tripathi, J. This is an appeal by the defendants against the judgment and decree dated 28-2-78 passed by the Civil Judge, Kanpur in Civil Appeal No. 426/74, Azizul Rahman v. Salimul Rahman & another, whereby the 1st appellate court has allowed the plaintiff's appeal and decreed the suit of the plaintiff for all the reliefs claimed. This appeal itself arose out of judgment and order dated 13-4-74 passed by the the VIth Addl. Munsif, Kanpur (City) in C. S. No. 1939 of 1969 Azizul Rahman v. Salimul Rahman, who dismissed the suit of the plaintiff with costs giving rise to the present appeal.
(2.) PLAINTIFF Azizul Rahman filed A O. S. No. 1939 of 1969 in the court of Munsif City, Kanpur for a decree of possession of an accommodation detailed at the foot of the plaint, a decree for damages for Rs. 52, mense profit @ 10 per month and so on. He has alleged that he is the owner of house No. 545/1, Faithfulganj, Kanpur as detailed at the foot of the plaint. Originally Abdulla alias Habib Ullah was the owner of the said house. He was the father of the plaintiff. He sold it to the plaintiff by means of a sale deed dated 24-11-62 and gave possession to him and since then he is the owner and in possession of the house. The defendants have no right, title or interest in the disputed property. The defendants are relations of the plaintiff and defendant No. 1 is the son of defendant No. 2, who is widow of Alimul Rehman, the brother of the plaintiff. The defendants are residing and are in oc cupation of the Khapraila Dalan and open roof of the first floor of the said house as plaintiffs licensee. PLAINTIFF has revoked the licence of the defendants by notice dated 9-9-68, which was served upon the defendants on or about 15-9-68. The defendants did not vacate the accommodation. Therefore, damages @ Rs. 5 per month an amount on which the same can be let out from the date of revocation of licence i. e. 9-9-68 till the date of actual possession has been claimed, apart from recurring damages at the same rate. The defence mainly is that admittedly, Abdulla was the owner of the house in dispute. He had orally gifted the disputed portion in favour of the defendants in 1945. By virtue of that oral gift, the defendants are in possession ever since as owners. The theory of licensee is false. In the alternative the defendants have also acquired rights by way of adverse possession. The sale-deed, allegedly relied upon by the plaintiff is a fictitious document. The executant was ill for a pretty long time before the execution of the said sale-deed. He had lost mental capacity to deter mine good and bad. Adequate consideration had not passed. The claim for damages is misconceived. The learned Munsif framed the following issues : (1) Whether the suit is undervalued and the court-fee paid is insufficient? (2) Whether this court has got no jurisdiction to try this suit? (3) Whether the plaintiff is the owner of the house in suit? (4) Whether Abdullah alias Habibullah executed the sale-deed in favour of the plaitniff for consideration? (5) Whether the defendants were licencees and the licence has been revoked? (6) Whether Abdullah made any gift in favour of the defendant's predecessor of 1/2 interest and defendants are in possession in their own rights? (7) Whether the defendants have perfected their title by adverse possession? (8) Whether the suit is barred by time? (9) Whether the defendants are liable to pay the damages at the rate of Rs. 5 per month? (10) To what relief, if any, is the plaintiff entitled? The learned Munsif found issues No. 1, 2, 6, and 8 in affirmative. Other issues were found in negative. The suit of the plaintiff was dismissed.
(3.) FEELING aggrieved, the plaintiff filed the Civil Appeal No. 426 of 94. After hearing learned counsel for the parties, the learned Civil Judge, by virtue of the impugned order and judgment, allowed the appeal and decreed the suit of the plaintiff. Hence this Second Appeal. At the time of admission of appeal, substantial questions of law had not been formulated. But the learned counsel Sri M. A Qadir has been allowed to for mulate the same as follows : (1 ). The appellate court has erred in law in disbelieving the witnesses of defen dants regarding the execution of gift-deed on the basis of contradiction, which was fully trivial and immaterial. (2 ). The trial court has recorded a specific finding of fact on consideration of evidence that the plaintiff has failed to establish the execution of the sale deed by Abdullah and that no consideration had passed to Abdullah as consideration of the sale-deed. These findings have not been set aside by the learned appellate court. (3) The appellate court has accepted the sale-deed without considering any evidence on the record of the plaintiff in a very cryptic manner. (4) Even if the appellate court was justified in holding the plaintiff to be true owner, in that event it was incumbent upon the trial Court to decide the issue of adverse possession. He has omitted to do so. (5) The appellate Court has not considered any evidence in respect of creation or revocation of licence except making a casual observation while concluding the judgment. (6) The burden of proof initially lie on the shoulders of the plaintiff. But the appellate Court has clearly shifted the entire burden of proof on the shoulders of defendants. (7) There is no finding by the appellate court as to what was the fee or rent agreed between the parties regarding the licence. But merely in the operative por tion of the decree, he has assessed it at the rate of Rs. 5 per month.;