Pratap Krishna Lohra, J. - (1.) APPALLED by the impugned judgment and decree dated 31st of March 2012 passed by learned Addl. District Judge (Fast Track) No. 3, Jodhpur Metropolitan (for short, 'learned lower appellate Court'), appellants/plaintiffs have laid this second appeal. By the impugned judgment, the learned lower appellate Court has affirmed the judgment and decree dated 14.12.2004 passed by learned Civil Judge (Jr.Div.), Jodhpur City, Jodhpur (for short, 'learned trial Court'), whereby it has dismissed the suit of the appellants for eviction and arrears of rent.
(2.) THE apposite facts of this appeal are that appellants are legal heirs of original plaintiff Mohan Nath, who filed a civil suit for eviction and arrears of rent against defendant Ratan Lal, whose legal heirs are respondents in the present appeal. As the original parties expired during the pendency of litigation before trial Court, their legal heirs were impleaded for them and have contested the litigation thereafter stepping into the shoes of their ancestors as successors. The case as set up by original plaintiff in the plaint was that he was owner of house situated in Phoolerao ki Ghati, Jodhpur for which Patta No. 22/49 -50 was issued by the Secretary, Jodhpur Municipality in his name on 18th November, 1949. According to plaintiff, that house was let out to defendant Ratan Lal at a monthly rent of Rs. 20/ - long back and as the tenancy was oral he was not in a position to say exactly about the month and year in which tenancy commenced. Further, according to plaintiff no receipt was given by him for the rent received and that defendant used to come to his house to pay rent after every 2 -3 months but the defendant tenant did not pay rent for 13 months, i.e. from August 1986 to September 1987, as such defaulted in payment of rent. Further case of the plaintiff was that defendant constructed certain rooms and shops in the rented premises and let out the same to others without his permission which entailed the defendant liable for eviction on the ground of material alteration and subletting of the premises. The plaintiff stated that construction of shops and letting out same to others by defendant came to his notice only through one of his relatives who visited the premises somewhere in the month of March, 1987 and on coming to know about the said fact he sent registered notices to defendant on 3rd April 1987 and 7th September, 1987 respectively through his advocate which were duly served on defendant -tenant, however, he replied the notices incorrectly on 25th September 1987 denying the relationship of landlord and tenant between them. The original defendant did not file written statement to the suit but after his death his Legal Representatives, the respondents herein, submitted written statement to the plaint on 11.07.1995 denying relationship of landlord and tenant between plaintiff and defendant as well as title of plaintiff in relation to the property in question. It was their case that the so called patta issued in the name of plaintiff was a forged one since the same did not tally the location and boundaries of the property in question. In the return, it was specifically averred that the property in question is in possession of defendant -respondents for last more than 50 years since the time of their ancestor Ratan Lal and they are in peaceful possession of it as its owners. The respondents emphasized that the construction on the disputed property was raised during lifetime of Ratan Lal and the electric and water connections stands in his name. It was asserted that neither there was existence of any tenancy, nor any rent transaction took place between original plaintiff and their ancestor Ratan Lal. Refuting the averment of monthly rent @ Rs. 20/ - allegedly agreed by Shri Ratan Lal, respondents pleaded that the said property was owned by Late Shri Ratan Lal and as such there is no question of default in payment of rent by Late Shri Ratan Lal. Respondents on strength of these pleadings repudiated the suit of plaintiff for eviction from the premises and arrears of rent, and prayed for dismissal of suit with costs.
(3.) ON the basis of pleadings of rival parties, the learned trial Court framed seven issues for determination. On behalf of the appellant -plaintiffs, in support of their case, witnesses PW1 Rajesh Nath, PW2 Suresh Nath and PW3 Sampat Raj were examined and documentary evidence Ex.1 to 7 were produced. In defence, defendant -respondents examined DW1 Chaitanya Prakash, DW2 Kahntilal and DW3 Sayarmal and exhibited 11 documents.;