- (1.) THIS first appeal has been filed by the defendants under Section 96 of C.P.C. being aggrieved by the judgment and decree of eviction dtd.20.11.2003 passed by the learned Additional Dist. Judge (Fast Track) No.2, Jodhpur in Cviil Suit No.156/2003 (61/1998) ­ Jai Singh V/s Sewoo Mal and ors. for possession of the suit property and damages.
(2.) THE plaintiff Jai Singh S/o Deva Ram filed a suit on 8.10.1998 with the case that the suit premises, a residential hosue and a shop situated at Subhash Chowk, Ratanada, Jodhpur was given on rent to Bhoju Mal S/O Adat Mal by caste Sindhi on 6.9.1973 at the monthly rent of Rs.45 per month. A rent-note Ex.A/2 was executed for the same and since the plaintiff used to live at Rupawato Ka Bera, Soorsagar, which is about 9 to 10 kms. away from the suit premises, he used to collect the rent once in 2-3 months and after the death of said tenant Bhojumal on 18.12.1996 issueless, he came to know about his death only 5-6 months thereafter and then he came to know that the defendants Sewoomal and his sons Raja, Ramesh and Uttam had unauthorisedly occupied the said suit premises and they were not directly relatives or descendants of tenant Bhojumal, but only belong to same caste Sindhi and therefore, since they were trespassers in the suit premises, they may be dispossessed and decree of eviction may be passed against them and mesne profit at Rs.1,000/- per month may be allowed to the plaintiff. The defendants filed written statement to the said plaint and claimed therein that they are not trespassers of the suit premises, but in fact they are living in the suit premises with Bhoju Mal since 1950 itslef and after partition of the country in the year 1947, in the year 1950, Sewoo Mal, Bhoju Mal and Idan Das came from Pakistan to Jodhpur and father of Sewoomal, namely, Chothmal and father of Bhojumal namely, Adatmal were cousin brothers and father of Idan Das, namely, Kewal Ram was also cousin brother of Bhoju Mal and they lived in a joint family and consequently, they claimed tenancy in their own right in the suit property. Inter alia defendants also claimed that some of the rent receipts prior to 6.9.1973 were issued by the landlord in the name of Bhojumal and Idandas also and in any case, they were not trespassers in the suit property since they were living in the suit property from the point of time much prior to 6.9.1973 and rent-note was executed in favour of Bhoju Mal only, he being the elder member in the larger family. He also produced various evidences like address given in the telephone bills, correspondences and LIC policies taken by them showing the address of the suit premises in those documents. While the plaintiffs produced P.W.1 Jai Singh (plaintiff himself), P.W.2 Devendra Snigh, P.W.3 Neeraj and P.W.4 Narayan Singh before the learned trial Court along with documentary evidence Ex.1, patta of the suit property, Ex.2 Rent-note dtd.6.9.1973, the defendants produced D.W.1 Uttam Varvani S/O Sewoomal, D.W.2 Rajkumar Varvani S/O Sewoomal, D.W.3 Ramesh Varvani S/O Sewoomal, D.W.4 Chandu Lalvani S/O Bheru al D/O 5 Sewwomal S/O Chothmal, D.W.6 Saligram S/O Gagu Mal, D.W.7 Virumal Tolani S/O Mirchumal besides documentary evidence Ex.A/1 to A/241, various rent receipts in the name of Bhojumal, telephone bills, letters etc. The learned trial Court framed six issues and in its impugned judgment dtd.20.11.2003 decided issues No.1 to 3 jointly and holding that the defendants having failed to prove their independent tenancy in their favour, were occupying the suit premises as trespassers and accordingly granted decree of eviction and possession in favour of the plaintiff ­ respondent landlord and directed the defendants to handover vacant and peaceful possession of the suit premises, Shop No.8 and House No.9 as described in para 1 of the suit within two months to the respondent ­ plaintiff and also pay mesne profit at Rs.300/- per month till such vacant possession is handed over. Being aggrieved by the said judgment and decree of the learned trial Court, the defendants have approached this Court by way of present first appeal under section 96 of C.P.C. on 28.1.2004.
(3.) MR.R.R. Nagori, Sr. Advocate assisted by Mr. Alkesh Agarwal taking the Court through entire relevant evidence and impugned judgment dtd.20.11.2003 emphatically submitted on behalf of the defendants as under: (i) The defendants could not be described as trespassers and plaintiff failed to prove before the Court below that they had unauthorizedly occupied the suit premises upon death of tenant Bhoju Mal on 18.12.1996 and by ample evidence on record, it was proved that the defendants were living in the same premises with Bhojumal ever since the aforesaid three persons Sewoomal, Bbhojumal and Idandas came in the year 1950 from Pakistan after partition of the country and they started living together in the suit premises and defendants No.2 to 4 sons of Sewoomal, namely, Raja, Ramesh and Uttam respectively were even born in the suit premises and consequently, it was absolutely wrong for the learned trial Court to hold in face of such over-whelming evidence that the defendants were trespassers or unauthorized occupants of the suit premises and consequently, no decree of possession or eviction against them could be passed. (ii) The learned counsel for the appellants ­ defendants Mr. Nagori, submitted that Bhojumal being elder in the large family of cousins, the rent-note was executed in his favour onf 6.9.1973 Ex.2, but on various occasions, the rent in question was paid by Idandas and Sewoomal, of course in the name of Bhojumal vide Ex.A/1 to A/68 and Ex.A/69 to A./76. The rent was some times paid by Uttam and some time by Raja Varvani S/O Sewoomal. Simlarly, Ex.A/89 to A/124 showed that the rent was paid at the rate of Rs.150/- per month and thereafter Rs.200/- per month by Sewoo Mal and his sons, present defendants ­ appellants. Accordingly, Mr. R.R. Nagori, Sr. Advocate argued that they were tenants of the suit premises independently of Bhojumal and without filing any separate eviction suit on the specified grounds under the Rent Control Act, 1950, no such eviction or possession decree could be passed against them. (iii) Mr. Nagori also drew the attention of the Court towards documentary evidence as Ex.A/187 to A/188, letters of LIC dtd.1.4.1993 addressed to the defendants at the suit premises, Ex.189, letter written by the wife of Sewoomal from UAE on 26.10.1994, Ex.A/190 letter dtd.11.10.1991 issued by the Science and Technology Department of Government of India addressed to the defendants, Ex./191 letter of UIT dtd.31.10.1994 at the aforesaid address, Ex.A/192 residence certificate dtd.19.7.1996 issued by the District Administration, gas connection voucher, telephone bills and electricity bills etc. He, therefore, urged that much prior to death of tenant Bhojumal on 18.12.1996, the defendants were living in the same premises undisputedly under their independent tenancy and they could not be evicted without the due process of law. He however, submitted that title of the respondent - plaintiff was not in dispute and the landlord was owner of the suit premises. On preponderance of probabilities for weighing the evidence produced by the defendants, Mr. R.R. Nagori, learned Sr. Advocate submitted that the judgment under appeal deserves to be set aside and the present appeal of the defendants deserves to be allowed. He relied upon the various case laws in support of his submissions, which will be discussed briefly hereinafter. Per contra, Mr. M.L. Chhangani, learned counsel for the respondent ­ plaintiff landlord urged that the findings of the Court below were cogent, valid and correct findings of facts based on relevant evidence and he emphatically denied the claim of the defendants that they were tenants in their own right and he also emphatically submitted that even payment of rent on some occasions by the defendants in the name of Bhojumal does not make them independent tenants of the plaintiff ­ respondent since Rent Note ex.2 was in the independent name of Bhojumal only and even assuming that they were living in the said house prior to 18.12.1996, their character in the suit premises changed to that of trespassers and unauthorized occupants upon death of original tenant Bhojumal, as no pedigree was proved by them nor they were linear ascendants or linear descendants of tenant Bhojumal and therefore, they could not be covered by the definition of 'tenant' given under Section 3(vii) of the Rent Control Act, 1950, which includes within its ambit only linear ascendants or descendants of the original tenant provided it is further proved that they were ordinarily residing with him in the said premises prior to his death and consequent termination of tenancy. He emphatically submitted that the fact that these three persons came from Pakistan does not make them members of same family and no tenancy was created in the name of Bhojumal for the benefit of their so called joint Hindu family and therefore, they could not claim any relationship with him as agnates or cognates of the deceased tenant Bhojumal and they could not succeed to the right of tenancy of original tenant Bhojumal. With his death on 18.12.1996, the tenancy stood terminated and the plaintiff - respondent was entitled to decree of eviction against unauthorized occupants and trespassers like the present appellants-defendants and the learned court below was perfectly and justifiably granted such decree on the basis of evidence led by the plaintiff. He also submitted that since ownership and title of the plaintiff is not in dispute and tenancy created way back in the year 1973 stood terminated in the 1996, the present suit filed by the plaintiff in the year 1998 deserves to be decreed by this Court also so that after long lapse of about 40 years, landlord is entitled to take possession of the suit property from the unauthorized occupants like the present appellants ­ defendants and the decree of the trial court below deserves to be upheld by this Court. He also relied upon the various judgments, which will be discussed hereinafter. Having heard the learned counsels for the parties at length and upon perusal of the entire evidence on record, various statements on both the sides, this Court is of the opinion that the present appeal filed by the defendants has no force and the same deserves to be dismissed. The reasons are as under. ;