Arun Bhansali, J. - (1.) This appeal under Section 96 CPC is directed against judgment and decree dated 23.03.2009 passed by Additional District Judge (Fast Track) No.4, Jodhpur, whereby, the suit filed by the plaintiff-respondent has been decreed by the trial court.
(2.) The facts in brief may be noticed thus: plaintiff Bhagwati Narayan filed a suit for possession and mesne profit against the appellants defendants, inter alia, with the averments that suit property a plot of land described in para 1 of the plaint situated at village Bawari on Jodhpur Nagaur road was let out w.e.f. 01.04.1967 by plaintiff, his mother Smt. Parwati and his brother Ganesh Narayan to defendants - Burmah Shell Oil Storage & Distributing 1 Company India Limited by three separate lease deeds for land admeasuring 5000 sq. ft., 7000 sq.ft. and 5000 sq.ft. respectively, which lease deeds were executed on 24.10.1967 and were registered on 30.11.1967; the assets of the lessee were transferred to Bharat Petroleum Corporation Limited pursuant to Burmah Shell Acquisition Act, 1976; the lease was for a period of 20 years 1 and, inter alia, provided for renewal of the lease for a further period of 20 years to commence from the date of expiry at the same terms and conditions in all respects as reserved and contained therein; the lease got renewed for the period 01.04.1987 to 31.03.2007, whereafter the plaintiff through his Advocate informed the defendants that he was not interested 2 in renewal of the lease deed; the defendants wanted to renew the lease for 20 years, for which, they have no right; after expiry of lease when the vacant possession was not handed over, notice under Section 106 of the Transfer of Property Act, 1882 ('the Act') was issued on 10.09.2007 terminating the tenancy and directing handing over of the possession 2 aiongwith mesne profit; mesne profit from the date of expiry was claimed at Rs.50,000/- per month; however, no reply to the notice was given and, therefore, the suit was being filed seeking possession; it was also indicated in the plaint that Smt. Parwati lessor has died and plaintiff is her and the land let out by Ganesh Narayan Rathi has been received by 3 plaintiff by way of family agreement based on which, the Gram Panchayat has issued Patta in plaintiff's favour including the land leased to Smt. Parwati and Ganesh Narayan and, therefore, the plaintiff is owner of the land and is entitled to possession; it was prayed that the possession of the suit property be handed over to the plaintiff and for the period 01.04.2007 : to 31.10.2007 mesne profit for use and occupation at Rs.10,000/- per month be decreed.
(3.) A written statement was filed by the appellants disputing the averments made in the plaint; the appellants disputed the right of the plaintiff to file the suit qua the entire land admeasuring 17000 sq.ft. it was, interalia, contended that the plaintiff had right qua 5000 sq.ft. only and as no document aiongwith the plaint has been filed indicating that the plaintiff was the sole owner of the suit property, he was not entitled to claim possession; the Patta dated 25.03.1988 issued by the Gram Panchayat, Bawari in plaintiff's favour was disputed indicating that such a Patta could not be issued as initial Patta in favour of Smt. Parwati, Ganesh Narayan and the plaintiff was already in existence and the same was, therefore, void; the claim of mesne profit at Rs.50,000/- Rs.10,000/- per month was also denied; ultimately, it was prayed that the suit be dismissed.;