JAIN, J. - (1.) THIS revision petition has been filed against the order of the learned Addl. District Judge No. 2, Jodhpur dated May 25, 1992 by which he has allowed the appeal and set-aside the order of the learned Addl. Civil Judge No. 1, Jodhpur dated February 02,1991, determining the amount of arrears of rent and interest at Rs. 11,785,40/ -. The facts of the case giving rise to this revision petition may be summarised thus.
(2.) THE plaintiff-petitioner filed a suit for recovery of arrears of rent and ejectment against the defendant-non-petitioner with the averments, in short, that the defendant-non-petitioner is in possession of the suit premises on monthly rent of Rs. 110/- since the year 1981, he has not paid the rent since July, 1992, he is creating nuisance and despite service of notice he has not vacated it. THE defendant admits in his written-statement that the suit premises belonged to the plaintiff and denied the remaining averments made in the plaint. He further averred in his written-statement that the plaintiff agreed to sell the suit premises to his wife for Rs. 4,000/- she is in possession and occupation thereof in pursuance of the said agreement and as such the relationship of land lord and tenant ceased to exist in between the parties. THE trial Court determined the amount of arrears of rent and interest at Rs. 11,785. 40/- by its order dated February 02,1991. THE defendant-non-petitioner filed appeal against this order and it was allowed by the learned Addl. District Judge No. 2, Jodhpur holding that the relationship of land-lord and tenant is necessary before determining the amount of rent and such a relationship does not exist in between the parties. It has been contended by learned counsel for the petitioner that the defendant-non-petitioner admits in his written statement that the suit premises belonged to him (plaintiff) but he has set-up an agreement of sale, even assuming for the sake of argument for a moment that it exists, does not go to confer any right, title or interest upon his wife. He further contends that the cases relied upon by the learned lower appellate court are quite different and distinguishable. In Santokh Singh vs. Umaid Singh, S. L. P. (Civil) No. 1207/89, the suit premises was sold through registrared sale-deed. He also contends that main question for consideration in a suit for recovery of arrears of rent and ejectment is whether there exists relationship of land lord and tenant in between the parties and not as to whether the plaintiff is the owner of the suit premises. He relies upon the decision of the Hon'ble Supreme Court given in S. B. Civil Second Appeal No. 18/88 on 24. 07. 89 and Sita Ram Pandit vs. Mohan Lal & Another (1 ). Despite service of the notice, none has put appearance for and on behalf of the defendant-non-petitioner. The defendant-non-petitioner has specifically admitted in para No. l of the written statement that the plaintiff agreed to sell the suit premises to his wife for Rs. 4,000/-, he obtained the entire sale consideration and he then issued a certificate. It has not been pleaded in the written-statement that an agreement for sale was executed by the plaintiff in favour of his wife. Even assuming for the sake of argument for a moment that such an agreement was executed, it did not go to confer any right, title or interest in favour of his wife. The suit ejectment has been filed in the year 1986 and no suit for specific performance on the basis of the alleged agreement of sale has so far been filed. On the contrary, it is well proved from the material on record including the affidavits of Kirta Ram Gora and Shankar Ram that the suit premises was let out to the defendant monthly rent of Rs. 10/- by the plaintiff. There is no reference either in the order of the trial court or in the order of the appellate Court that any counter-affidavit was filed by the defeadant-non-petitioner. In the case relied upon by the first appellate Court, the sale-deed was executed in favour of the tenant by the land-lord. The case relied upon by the learned counsel for the plaintiff-petitioner duly supports his contentions. Under these facts and circumstances, it can well be said that the learned first appellate Court acted with material irregularity in the exercise of jurisdiction while interfering with the order of the learned trial Court.
(3.) ACCORDINGLY, the revision petition is allowed. The Order of the learned Addl. District Judge No. 2, Jodhpur dated May 25,1992 is set-aside and the order of the Addl. Civil Judge No. l, Jodhpur is restored , .;