Vineet Kothari, J. - (1.) THE present first appeal has been filed by the plaintiff - Hanuman Prasad s/o Jes Raj by caste Brahmin (Gaur) against the respondent defendants - Smt. Sumitra Devi and Bhagwan Sharma s/o Ramdeo Sharma being aggrieved by the rejection of his suit for possession No. 7/2006 on 9/10/2007 by the learned Addl. District Judge (Fast Track) No. 3, Bikaner.
(2.) THE suit property in question is a residential house situated at 12/219, Mukta Prasad Colony, Bikaner, of which, according to the plaintiff, permissive possession was given to the defendants Smt. Sumitra Devi & her son, Bhagwan Sharma, in the year 2001 and according to the plaintiff, defendant Smt. Sumitra Devi wrongly claimed to be in possession of the said house as his wife, whereas, the plaintiff was already married to one Smt. Durga Devi and this fact was admitted by the defendant herself in her statement recorded by the learned trial court on 1/9/2007 as D.W.1. The alleged marriage of defendant Smt. Sumitra Devi with plaintiff Hanuman Prasad being void and non est, still the learned trial court rejected the suit filed by the plaintiff on the ground that the plaintiff failed to prove that he did not give any licence to the defendant No. 2 to reside in the said residential house in question while deciding issue No. 2 against the plaintiff. It would be relevant to quote the finding of learned trial court in this regard, which will also throw light on the incidental facts arising in the present case. Learned counsel for the appellant -plaintiff, Mr. M.S. Purohit submitted that the learned trial court has taken note of the fact that the alleged claim of marriage of defendant No. 1 - Sumitra Devi with the plaintiff was void and this fact was further fortified by the decree passed on 16/5/2013 by the learned Family Court, Bikaner in civil misc. appeal No. 312/12 - Smt. Durga Devi vs. Hanuman Prasad & Sumitra Devi in which an application was filed under Section 5(1) read with Section 11 of the Hindu Marriage Act, 1955 and the learned Family Court has declared Smt. Durga Devi to be the legally wedded wife of Hanuman Prasad and the alleged marriage of Smt. Sumitra Devi with Hanuman Prasad as void ab initio. The relevant portion of the said judgment is also reproduced hereunder for ready reference: -
(3.) LEARNED counsel for the appellant Mr. M.S. Purohit, therefore, submitted that the oral licence giving permissive possession to the defendants to reside in the said house stood revoked and the plaintiff filed the present suit for possession against her and, therefore, the learned court below wholly erred in holding that the plaintiff failed to prove revocation of said licence by him against defendant Sumitra Devi. He, therefore, prayed that the present first appeal deserves to be allowed and the suit deserves to be decreed in favour of the plaintiff.;