- (1.) THIS second appeal under Section 100 CPC is directed against appellate judgment and decree dated 24.02.1999 passed by Additional District Judge No.2, Jodhpur, whereby, the judgment and decree dated 13.12.1996 passed by Additional Civil Judge (Junior Division) No.1, Jodhpur has been modified.
(2.) THE facts in brief may be noticed thus : a suit for eviction on the ground of default in payment of rent was filed on 1981 by Maji Leel Kanwar Deodi through her power of attorney holder Hanuman Singh against Guru Bux Singh for eviction from shop No.10 and a room adjacent to it situated at Sojati Gate, Jodhpur, the rate of rent was indicated at Rs.99/ - per month; during pendency of the suit, one Khem Singh S/o Shri Gopi Ram (present respondent) filed application under Order XXII, Rule 3 and 10 CPC on 03.09.1981 with the averments that he has purchased the suit property on 15.04.1981 for his personal requirement from Rai Bahadur Vijay Singh Ji Ganpat Singh Ji Mertia Rathore Rian Badi Dharmarth Trust ('the Trust') by a registered sale deed and since then he has become owner of the property and landlord of the defendant; the plaintiff had made a Public Trust of the property in the name of the Trust on 18.03.1981 and got it registered, copies of both the documents were being filed; the applicant has become owner of the suit property and information in this regard has been given to the defendant; the right to prosecute the present suit has accrued to the applicant on 15.04.1981 and now as plaintiff has died on 23.08.1981, therefore, the right to sue the present suit survives in applicant only; it was prayed that in place of plaintiff, the applicant be substituted as plaintiff. 3. A reply to the application was filed by the defendant and the averments contained in the application were denied for want of knowledge, as the defendant was not given any information about creation of the Trust and no information has been given by the Trust to the defendant; receipt of notice was denied.
(3.) THE application filed by the applicant Khem Singh was allowed by the trial court on 20.01.1982, inter alia, on coming to the conclusion that during the life time of Maji Leel Kanwar, the suit property was sold to Khem Singh and Maji Leel Kanwar was also a Trustee in the Trust and, therefore, the transfer in favour of Khem Singh has taken place during the life time of Maji Leel Kanwar, as such, the applicant was entitled to be substituted as plaintiff; the trial court also opined that there was no substance in the argument of the defendant that after transfer by Maji Leel Kanwar the Trustees have not become the parties to the suit and, therefore, Khem Singh cannot be substituted as, in the opinion of the trial court, the position of Khem Singh was the same, which was that of his predecessors in title Trust or that of Maji Leel Kanwar.;