- (1.) THE appellant-defendant-tenant has filed the present second appeal before this Court under Section 100 of CPC on 30.03.2009 being aggrieved by the concurrent decree of eviction dated 24.03.2007 granted by the learned trial court of Additional Civil Judge (Sr. Division), No.2, Bikaner in Civil Original Suit No.31/2005- Latif & Ors. Vs. Amin, which judgment and decree has also been upheld by the learned first appellate court below of Additional District Judge, (FT) No.2, Bikaner vide the judgment and decree dated 27.01.2009 while dismissing the appeal filed by the defendant-tenant being Civil Appeal No.5/2009- Amin Vs. Latif & Ors. in respect of suit shop, situated at Fud Bazar, Gajner, Bikaner.
(2.) LEARNED counsel for the appellant-defendant, Mr. Sajjan Singh, raised the following contentions before this Court: - (i). that the in the shop in question situated at "Bhutto- ka-Bas", Bikaner was given on rent by the previous owner, namely, Surajmal, way back in the year 1992 to the defendant-tenant, and thereafter the said Surajmal sold the residential house, to which the present shop in question is appurtenant by a registered sale-deed dated 08.07.1998. In respect of shop in question, however, a separate agreement to sell was executed by Surajmal in favour of respondent-plaintiff, Latif S/o Abdul on 04.07.1998 since the said shop in question was not situated on his "Pattasud" land of the previous owner Surajmal, but the same was situated on the municipal land, for which the said Surajmal is said to have undertaken the regularization proceedings with Municipal authorities and which are stated to be pending even by now. Learned counsel for the appellant-defendant, Mr. Sajjan Singh, therefore, contended that without the crystallized title in respect of suit shop, being transferred to the respondents-plaintiffs, who claims to be the landlord, which relationship has been denied by the defendant-tenant under the agreement to sell dated 04.07.1998, he did not get any right to sue for eviction of present appellant-defendant and, therefore, the suit itself was not maintainable. (ii). He further contended that in his subsequent and separate suit filed for eviction under new Rajasthan Rent Control Act, 2001, the Appellate Rent Tribunal, Bikaner in Appeal No.217/2004- Amin Ali Vs. Latif, vide its order dated 02.02.2009 has held that the respondents-plaintiff, Latif, did not get any title under the agreement to sell dated 04.07.1998 and, therefore, he could not file subsequent suit for determination of standard rent and being not the owner of the suit premises i.e. the shop in question, the learned trial court could not determine the standard rent and since that appellate order dated 02.02.2009 still stands, therefore, the parties are bound by the principles of res-judicata. Hence, no eviction decree can be passed against the present appellant-defendant as has been done by the learned appellate court under the impugned order dated 27.01.2009 affirming the trial court's judgment dated 24.03.2007. He further submitted that the present second appeal deserves to be admitted and substantial questions of law deserve to be framed by this Court under Section 100 of CPC. In support of his submissions, he relied upon following judgments: 1. Karam Chand Vs. LR's of Labh Chand reported in 2008 (2) RLW 1685 (Raj.). 2. Md. Nooman and Ors. Vs. Md. Jabed Alam and Ors. reported in 2010 AIR SCW 5979. On the other hand, Mr. Rajesh Parihar, learned counsel appearing for the respondents-plaintiffs submitted that the against the order dated 02.02.2009 passed by the learned Appellate Rent Tribunal, Bikaner, the plaintiffs had filed a writ petition before this Court being SBCWP No.10469/2011- Latif & Ors. Vs. Appellate Rent Tribunal & Anr., which writ petition, however, withdrawn by the plaintiffs-petitioners on 27.04.2011 since the writ petition had certain defects, however, with the liberty to file fresh writ petition; and such fresh writ petition has already been filed by the plaintiff, Latif, viz. SBCWP No.1677/2012- Latif & Ors. Vs. Appellate Rent Tribunal, Bikaner & Anr., which is pending in this Court, however, no orders yet have been passed on the same by this Court. He also submitted that on the basis of Appellate Rent Tribunal order dated 02.02.2009, the defendant-appellant (Amin) also filed a review petition being Review Petition No.60/09 seeking review of impugned judgment in the present second appeal dated 27.01.2009, which review petition has also been dismissed by the learned Additional District Judge, No.2, Bikaner vide order dated 29.08.2011 and against which a revision petition filed by the defendant-tenant in this Court viz. SBCR No.5/2012- Amin Vs. Latif & Ors., has also been dismissed by this Court on 10.01.2012 in view of pendency of this second appeal filed by the defendant-tenant.
(3.) MR. Rajesh Parihar, counsel for the respondents-plaintiff also contended that the question of title is not relevant in the eviction matters and irrespective of the fact that earlier owner, Surajmal of the suit premises i.e. the shop in question had already filed the proceedings for regularization of his possession and title with him before the the Municipal authorities at Bikaner; and the said application is still pending, the rights whatsoever Mr. Surjmal, had crystallized title or not in his favour, stood transferred to the plaintiff- respondents Latif under the agreement to sell dated 04.07.1998. He also urged that the learned Appellate Rent Tribunal, Bikaner has erred in holding in its order dated 02.02.2009 that the said agreement to sell dated 04.07.1998 was not enforceable in law not being duly stamped and registered; and consequently, the possession of title even though uncrystallized, stood transferred from Surajmal to the plaintiff, Latif under the agreement to sell dated 04.07.1998. As far as eviction proceedings are concerned, the defendant-tenant, Amin, cannot question the title of the plaintiff-Latif or Surajmal in this regard in respect of suit shop especially when he himself has not claimed any title with any Government authority in respect of the suit shop in question.;