- (1.) THE plaintiff-appellant- Rajendra Singh S/o Bharat Singh Gehlot, has filed the present first appeal under Section 96 of Code of Civil Procedure, 1908, in this Court on 18.05.2002 against the defendants, Bhagat Singh and Bhanwar Singh both sons of Achlu Ram and the defendant No.3, Achlu Ram S/o Labhu Ram, being aggrieved by the judgment and decree dated 22.02.2002 of learned trial court of Additional District Judge No.2, Jodhpur dismissing the plaintiff's suit No.64/82- Rajendra Singh Vs. Bhagat Singh & Ors., in respect of suit shop (Kiosk) No.10-A, measuring 9' x 9', situated near Mahamandir Circle, Jodhpur.
(2.) THE appellant-plaintiff, Rajendra Singh Gehlot set up the case that he had let-out the suit shop/Kiosk to the defendants on 01.01.1978 at daily rent of Rs.7.50, which was raised to Rs.9/- per day w.e.f. 01.01.1979 and Rs.10.50 from 01.01.1980 and in the said suit shop, furnitures, utensils were that of the plaintiff. THE plaintiff further claimed that premium/daily rent had gone in arrears to the extent of Rs.15,172/- at the time of filing of the suit on 08.10.1982. The defendants-respondents, Bhagat Singh and others set up the defence before the learned trial court that the plaintiff, Rajendra Singh Gehlot is neither the owner, nor the landlord or the lessor qua them and the defendant No.3, Achlu Ram, had originally taken the said kiosk/shop from one Sh. Madan Lal S/o Mitha Lal Nai (DW.5), and there is no privity of contract between the defendants and the plaintiff, Rajendra Singh Gehlot and the defendants are continuously paying rent to the owner-cum-landlord, Sh. Madan Lal Nai, who was allotted the said kiosk by Urban Improvement Trust, Jodhpur in the year 1977 as in the year 1975 upon imposition of Emergency, his long possession was removed during the emergency and in the year 1977, the said Madan Lal Nai was alloted as an alternative the suit shop/kiosk measuring 9' x 9', which was let out by him to the defendant No.3-Achlu Ram. Learned trial court dismissed the suit not believing the evidence of the plaintiff, Rajendra Singh Gehlot that he, under an agreement to sell Ex.9, executed by said Sh. Madan Lal S/o Mitha Lal Nai, had taken possession of the suit shop/kiosk and had let-out the same to the present defendant-respondent, Achlu Ram. Being aggrieved by the said dismissal of the suit, the plaintiff-appellant, Rajendra Singh Gehlot has approached this Court by way of instant first appeal. Mr. R.K. Thanvi, Sr. Advocate assisted by Mr. Narendra Thanvi, learned counsel for the plaintiff-appellant submitted that under the Agreement to Sell Ex.9, the plaintiff had purchased the said suit shop/kiosk from Sh. Madan Lal S/o Mitha Lal Nai, and initially the defendants-tenants had even paid rent to him, but later on, refused to pay the same and, therefore, the plaintiff was entitled to recover the rent from them and also seek possession of the suit shop. He, therefore, submitted that the present first appeal deserves to be allowed and the learned trial court has erred in dismissing the suit.
(3.) ON the other hand, Mr. Rajesh Joshi, learned counsel for the respondents-defendants, Bhagat Singh and others, vehemently submitted that there is overwhelming documentary evidence on record to establish that the suit shop/kiosk No.10-A, situated near Mahamandir Circle (Near Railway line), Jodhpur was alloted by the U.I.T, Jodhpur on 24.03.1977 in favour of Madan Lal Nai vide Ex. A/63, who had let-out the same to the present defendants, who were continuously paying the rent to said Sh. Madan Lal (DW.5) only vide Ex.A/1 dated 05.01.2001 onwards upto Ex.A/61 and several such rent receipts issued by said Sh. Madan Lal Nai, have been produced on record to establish the landlord-tenant relationship between these two persons; as against which the present plaintiff, Rajendra Singh Gehlot, has not produced a single documentary evidence to establish his ownership or title over the suit shop in question and, therefore, his self-serving oral evidence was rightly not believed by the court below. Mr. Rajesh Joshi, learned counsel for the respondents- defendants further submitted that the Agreement to Sell Ex.9 purportedly executed by Sh. Madan Lal Nai in favour of plaintiff, Rajendra Singh, has not at all been proved and on the contrary the said Sh. Madan Lal Nai himself was examined as DW.5 by the court below and he has denied the execution of such agreement by him. He also drew the attention of the Court towards Ex.10, allotment letter dated 30.03.1982 issued by the U.I.T., Jodhpur in favour of Sh. Madan Lal Nai and taking the Court through various statements recorded by the learned trial court of PW.1 Rajendra Singh Gehlot, his father PW.2, namely, Bharat Singh Gehlot and DW.2 Bhanwar Singh and DW.5, Madan Lal Nai, learned counsel for the respondents-defendants, Mr. Rajesh Joshi, submitted that in the face of overwhelming documentary evidence, the false stand taken by the plaintiff that he was owner of the suit shop/kiosk was absolutely false and the learned court below has rightly dismissed the suit. I have heard learned counsels for the parties at length, perused the evidence on record and the impugned judgment of the court below. ;