- (1.) THE appellant/defendant, Smt. Kesi Bai W/o Bhagga Ji Gameti, and daughter of late Smt. Kasturi Bai, has filed the present second appeal under Section 100 of Civil Procedure Code, 1908, aggrieved by the concurrent judgment and decree of possession granted in favour of respondents/plaintiffs, Kailash Bihari Vajpai, Administrator of the Temple of Shri Ekling Ji Trust, Udaipur in respect of 'Kachha House/Hut ( )' in which the mother of the appellant, who was employed by the respondent - Trust for cleaning work, was allowed to stay. After her death, the appellant/defendant, Smt. Kesi Bai and her husband, Sh. Bhaggaji, appear to be in possession of the said disputed house/hut.
(2.) THE relevant findings of the lower first appellate court affirming the findings of learned trial court in this regard in the judgment and decree dated 11.01.2012 is quoted herein below for ready reference: - JUDGEMENT_471_TLRAJ0_2014.jpg JUDGEMENT_471_TLRAJ0_20141.jpg JUDGEMENT_471_TLRAJ0_20142.jpg Mr. Anuragh Shukla, learned counsel for the appellant/defendant urged that the land in question on which the present appellant was having her Kachha House (Hut) was on Aaraji No.558 and not on Aaraji No.557, on which the Temple Trust had its property but the documents to substantiate the aforesaid facts were filed along -with her application under Order 41 Rule 27 CPC at the appellate stage for the first time. He also referred to a notice allegedly given by the UIT, Udaipur, to the appellant on 16.10.2000 seeking to dispossess the appellant from Aaraji No.558 for perusal of the Court. He submitted that the title of the plaintiff -Trust was also not proved before the courts below and, therefore, they are not entitled to evict the present appellant from the said 'Kachha House/Hut ( )' in pursuance of the decree of the courts below and, therefore, substantial question of law arises for consideration by this Court.
(3.) THESE contentions are vehemently opposed by the learned counsels, Mr. Manish Shishodia and Mr. Ramit Mehta, appearing on behalf of respondents/plaintiff Trust, who have submitted that the concurrent findings of fact do not require any interference by this Court under Section 100 of Civil Procedure Code and no substantial question of law arises. He also submitted that not a single word has been stated in the memo of second appeal that the appellant was having her house on the Aaraji No.558 and not on 557 and on the contrary, Aaraji No.557 land belonging to the respondent - Trust, has been admitted by the appellant herself. They also submitted that the factum of her mother, Kasturi Bai given a permissive possession to live in the said 'Kachha House/Hut ( )' at a rent of Rs.275/ - per month, while doing the services of the Temple trust for cleaning work, is clearly admitted by the appellant. Therefore, this subsequently raised defence as an afterthought now at this stage, which was never raised before the courts below, cannot be sustained or even looked into.;