- (1.) THE plaintiff-appellant having lost this legal battle before the two courts below in the present suit for injunction, has preferred this second appeal u/s 100 of CPC against the judgment and decree dated 31.05.2008 of learned trial court of Civil Judge (Sr. Division), Gulabpura, Bhilwara) in Civil Original Case No.23/07- Harnath Vs. Bhura & Ors. dismissing the plaintiff's suit for ejection, recovery of rent and permanent injunction, and against the judgment and decree dated 03.01.2011 of the first lower appellate court of Additional District Judge, Gulabpura, Distt: Bhiwara dismissing the plaintiff's first appeal being Civil Appeal No.10/08- Harnath Vs. Bhura & Ors.
(2.) MR. Ramandeep Singh, learned counsel for the appellant-plaintiff submitted that the oral tenancy was created in favour of defendants' father, namely, Sh. Ramdhan Daroga at a monthly rent of Rs.300/- per month for two years from January, 2002. According to the plaintiff, in the suit premises was let out to the respondents-defendants, over which the respondents used to tie their cattle, however, later on they started to reside in the suit premises. The respondents- defendants after paying rent for two years till 05.01.2004, stopped to paying the rent and refused to vacate the suit premises and thus have committed in default of payment of rent. The plaintiff-appellant then asked them to vacate the suit premise and upon not vacating the suit premises, he filed the suit seeking eviction of the defendants from the suit premises. Upon receipt of the summons of the eviction suit, the respondents-defendants filed their written statement and contested the said suit. The defence set-up by the defendants- respondents was that they were in possession of same plot of land in question for last fifty years and documentary evidence was also produced by the defendants, viz. order of District Collector, by which the "Patta" issued in favour of plaintiff- Harnath for the said plot of land, was cancelled by the said revisional authority. The defendants also set-up their own title on the basis of such long possession over the plot of land in question. Mr. Ramandeep Singh, learned counsel for the appellant-plaintiff relying upon the Hon'ble Supreme Court decision in the case of Smt. Shanti Devi Vs. Amal Kumar Banerjee reported in AIR 1981 SC 1550 submitted that since the defendants also claimed their title over the same plot of land on the basis of their adverse possession, hence, there was no need of terminating the lease by giving notice u/s 106 of the Transfer of Property Act. He further submitted that since the oral evidence was brought before the court below in support of payment of rent to the plaintiff-appellant, the relationship of tenancy was established and the courts below have erred in holding otherwise. He, therefore, submitted that substantial question of law arises in the present second appeal of plaintiff. He also submitted that fate of the revisional order passed by the learned Collector cancelling the "Patta" issued in his favour has not been yet ascertained. On the other hand, Mr. Sandeep Saruparia, learned counsel for the respondents-defendants, Bhura and other, submitted that no documentary evidence worth the name has been produced by the plaintiff substantiating the relationship of landlord and tenant. No notice terminating the alleged lease under Section 106 of the T.P. Act has ever been served by the plaintiff and, therefore, the courts below have rightly dismissed the suit filed by the plaintiff-appellant. He further submitted that the "Patta" issued in the name of plaintiff stood cancelled and the documentary evidence adduced by the defendants before the learned trial court viz. revisional order, cancelling "Patta" of plaintiff, electricity bills and certificate of Panchayat, prove that the defendants were in long possession over the plot of land in question. The courts below were justified in dismissing the suit for eviction and recovery of arrears of rent by the plaintiff. He, therefore, submitted that no substantial question of law arises in the present second appeal of the plaintiff and the findings of fact returned by the learned courts below deserves to be upheld. Having heard the learned counsels for the parties, and upon careful perusal of reasons given in the impugned judgment and decree of the courts below, this Court is of the opinion that no substantial question of law arises in the present second appeal and same deserves dismissal. Not only the appellant-plaintiff failed to adduce any documentary evidence and on the contrary, the "Patta" produced by him, stood cancelled by the learned Collector, way-back in the year 2007, and more than five years have passed thereafter and no material has been brought on record to show that the order cancelling the "Patta" has been set aside or quashed by any superior competent court. In the absence of any semblance of title, right or interest of the plaintiff-appellant over the suit land in question, as against the possessory title proved by the defendants with the help of documentary evidence before the courts below, this Court is satisfied that the courts below have rightly arrived at findings of fact and have dismissed the suit filed by the plaintiff-appellant. The judgment relied upon by the learned counsel for the appellant-plaintiff is of little avail to him as the same is distinguishable on the facts. No substantial question of law arises in the present second appeal of the appellant-plaintiff and the same is hereby dismissed. No costs. A copy of this judgment be sent to both the parties and both the courts below forthwith.;