Bela M. Trivedi, J. - (1.) THE present second appeal filed by the appellant -plaintiff under Section 100 of CPC arises out of the judgment & decree dated 07.05.1990 passed by the Additional District Judge No. 2, Bharatpur (Camp Bayana) (hereinafter referred to as "the appellate court") in Civil Appeal No. 5/83, whereby the appellate court has dismissed the appeal and confirmed the judgment & decree dated 15.04.1980 passed by the Court of Munsiff & Judicial Magistrate (First Class) Bharatpur (hereinafter referred to as "the trial court") in Civil suit No. 78/70.
(2.) THE short facts giving rise to the present appeal are that initially, Shri Poonam Chand and his brother Shri Champalal were the joint owners of two shops. On partition having taken place between them, somewhere in 1963, the shop situated on the western side fell into the share of Shri Champa Lal and the other shop situated on the eastern side fell into the share of Shri Poonam Chand. On 22.05.1963, the appellant -Kedar Nath who was the tenant of the shop on western side purchased the said shop from Shri Champa Lal vide registered sale deed (Exhibit -1), and the respondent No. 2 Shri Kalyan Prasad and the respondent No. 3 Shri Mahesh Chand (original -defendant Nos. 2 & 3) purchased the shop situated on the eastern side from Shri Poonam Chand, (in which the respondent Nos. 4 & 5 were the tenants), vide the registered sale deed dated 27.12.1968 (Exhibit -10). It further transpires that there was one Bukhari, a space below the stair case situated in between the said two shops, the corpus of which was part of the appellant's shop, and the opening thereof was in the shop of the respondent Nos. 2 & 3. The appellant -plaintiff therefore filed the suit seeking possession of the said Bukhari, alleging inter alia that the Bukhari was sold out to him as per the sale deed executed by Shri Champa Lal, and that at that time, Shri Poonam Chand had also assured him that possession of Bukhari would be handed over to the appellant. According to the appellant since the said possession of the Bukhari was not handed over, he had filed the suit against the respondents -defendants. The said suit was resisted by the respondents -defendants by filing their respective written statements. The respondent No. 1 -defendant No. 1, Shri Poonam Chand had contended inter alia that the opening of the Bukhari was in the shop situated on the eastern side, and was being used by the defendants -tenants. He denied that the said Bukhari was to be handed over to the appellant. The respondent Nos. 2 and 3 had contended in their written statement that they had purchased the shop on the eastern side from the respondent No. 1 Poonam Chand, alongwith all appurtenant and easementry rights. It was also contended that the appellant was sold the stair case constructed over the Bukhari, however the Bukhari was not sold out to him. The respondent Nos. 4 & 5 had contended inter alia that though the Bukhari did not belong to the appellant, he was trying to take possession of the Bukhari forcibly, and hence they had filed one suit seeking injunction against the appellant, which was pending. The trial court from the pleadings of the parties had framed the following issues: -
(3.) AFTER appreciating the evidence on record, the trial court decided issue Nos. 1 & 4 against the appellant -plaintiff by holding that the appellant -plaintiff had failed to prove that he had become the owner of the disputed Bukhari pursuant to the sale deed executed by Shri Champa Lal in his favour, and also failed to prove that Shri Poonam Chand had assured him to hand over the possession of the said Bukhari. The issue No. 2 was decided against the defendant No. 1 Poonam Chand by holding that he was not the owner of the said Bukhari. The trial court decided issue No. 3 against the respondent Nos. 2 & 3 by holding that they were not the owners of the disputed Bukhari, and that the said Bukhari was not the appurtenant to the shop purchased by them vide the sale deed dated 27.12.1968. The issue No. 5 was decided in favour of the respondent Nos. 4 & 5 by holding that it was not disputed that the respondent Nos. 4 & 5 were the tenants of the shop in which there was opening of the disputed Bukhari. The trial court after appreciating the evidence on record dismissed the suit vide the judgment & decree dated 15.04.1980.;