- (1.) THIS second appeal arises out of the judgment and decree of the first appellate Court whereby it has affirmed the judgment and decree of eviction passed against the appellant tenant.
(2.) SCORNING the checkered history of the case, the brief facts are that Late Shri Shiv Karan, father of the respondents, launched a civil suit against the appellant tenant for arrears of rent and eviction from rented premises which was a Nohra situated at Dikhnade Bas, Ratangarh. At the threshold, in the plaint three grounds were set out for eviction, viz., reasonable and bonafide necessity, default and material alteration undertaken by the appellant tenant. The suit was contested by the appellant and a written statement was filed denying all the allegations. In the written statement, the appellant has averred that he is not a tenant and being owner of the property, the suit as such is not tenable against him. Taking into account the pleading of the appellant, the plaintiff Shiv Karan made endeavor to amend the plaint by incorporating the ground of denial of title for eviction. While acceding to the prayer of the plaintiff, the learned trial Court allowed the amendment and permitted him to insert the new ground of eviction, namely, denial of title. During pendency of the trial of the suit, original plaintiff Shiv Karan expired and his legal representatives were substituted as plaintiffs to pursue the suit. The learned trial Court framed issues for determination and the rival parties adduced their evidence. On behalf of original plaintiff, his power of attorney Shiv Bhagwan appeared in the witness box and testified on oath. Besides Shiv Bhagwan, three other witnesses also appeared on behalf of the plaintiffs to prove their case. The appellant himself appeared in the witness box for substantiating his defence and two other witnesses also appeared on his behalf to strengthen his defence. The learned trial Court while deciding issue relating to default in payment of rent, recorded a categorical finding against the appellant but allowed him the benefit of first default. Two crucial issues i.e. Issue No.4 concerning material alteration in the premises, and Issue No.12A denial of title by the appellant, were decided against the appellant tenant and on the strength of decision on these two issues, the learned trial Court passed the decree for eviction. Being disdained by the judgment and decree of the learned trial Court, the appellant tenant preferred first appeal before the learned Addl. District Judge, Ratangarh, District Churu. Before the first appellate Court, respondents No.1 & 2 were arrayed as party. The first appellate Court, vide its judgment and decree dated 23rd of July 2011, upheld the judgment and decree passed by the learned trial Court and dismissed the appeal of the appellant.
(3.) LEARNED counsel for the appellant, Mr. A.K. Rajvanshy, has strenuously argued that the respondent plaintiffs have miserably failed to prove their case inasmuch as the plaintiff/plaintiffs himself/themselves never appeared in the witness box to prove the requisite grounds for eviction. Assailing the testimony of the power of attorney holder of the plaintiff, learned counsel for the appellant would urge that his statements are absolutely vague and cryptic, and on the strength of these statements the grounds for eviction are not being fully proved in favour of respondent landlord. Learned counsel for the appellant has contended that the ground for eviction, namely, denial of title has been misconstrued by both the Courts below and the same has not been thrashed out in the light of other facts and circumstances, which were pleaded and proved by the appellant. Making scathing attack on the statement of power of attorney of the plaintiff, learned counsel for Mr. Rajvanshy has argued that on many crucial questions the witness has answered evasively, and therefore, his testimony is unworthy of any credit within the four corners of Order 3 Rule 1 & 2 CPC and solely on that count the judgment and decree passed by both the Courts below cannot be sustained. For substantiating his contention, learned counsel for the appellant has placed reliance on the following verdicts: 1. Janki Vashdeo Bhojwani and Anr. Vs. Indusind Bank Ltd. and Ors. [AIR 2005 SC 439] 2. Vidhyadhar Vs. Manikrao and Anr. (AIR 1999 SC 1441) 3. Sohan Devi (Smt.) and Ors. Vs. Damodar Lal and Anr. [2013(3) RLW 2615 (Raj.)] 4. Ram Prasad Vs. Hari Narain (AIR 1998 Raj. 185). ;