PANNA CHAND JAIN, J. - (1.) THIS revision petition is directed against the order dated 6th August, 1985, passed by the learned Addl. District Judge No. 1 Jaipur City, Jaipur, by which an application filed by Sita Ram alleged to be under Order 21 Rule 36 read with Section 151, CPC, has been dismissed in the course of deciding the execution application filed by one Suraj Narain, decree -holder, against Gordhan, judgment -debtor, arising out of the decree dated 12th March 1973, passed in Civil Suit No. 54/1961.
(2.) BRIEFLY stated the facts of the case are that plaintiff Suraj Narain instituted a suit for possession against Udai Narain and others. The property with respect to which the possession was claimed is a temple known as temple of Thakurji Harsh Bihariji and is a situated in Kishanopol Bazar, Jaipur. It was alleged in the suit that one Shri Ganga Chand was a trustee of the temple who died in the year 1916, leaving behind Gopi Devi, his widow and two sons Gopal and Lal Chand. Gopal and Lal Chand died during the life -time of Gopi Devi. In the suit it was alleged that Gopi Devi appointed Udai Narain as Pujari of the temple. It was also contended that Gopi Devi made will in favour of Udai Narain before her death. Gopi Devi died on 7th June, 1956. In the matter of the will, Suraj Narain (sic Udai Narain) obtained a probate in favour of Udai Narain. The learned Additional District Judge vide his judgment dated 12th March, 1973, decreed the suit of the plaintiff. Suraj Narain and held that the letters of administration issued in favour of Suraj Narain(sic Udai Narain) were ineffective and against the rights of the plaintiff as trustee on account of his being a reversioner. A decree for possession of the property was accordingly passed in favour of the plaintiff and against the defendant. After the passing of the decree on 12th March, 1973, an appeal was preferred to this Court which was also dismissed on 30th January 1984. A special appeal was also preferred against the judgment of the learned Single Judge, but the same was also dismissed vide judgment dated 23rd May, 1984, by a Division Bench of this Court. The decree -holder filed an execution petition before the Executing Court praying for delivery of possession from Gordhan son of Udai Narain. During the course of execution an application was filed by Sita Ram, petitioner in this revision petition. In the application Sita Ram contended that he is an old tenant and that he had been paying rent to his land -lord Udai Narain Certain receipts were also filed with regard to the payment of rent. This application was contested by the decree -holder who raised a number of objections about the right of Sita Ram to move such an application and about the maintainability of the application. The learned Additional District Judge No. 1, Jaipur City vide his order dated 6th August, 1985, dismissed the application. Aggrieved by the impugned order dated 6th August, 1985, Shri Sita Ram filed revision petition before this Court. It has been listed for admission. The decree -holder entered upon a caveat and after hearing both the parties, this revision petition is being disposed of finally.
(3.) SHRI C.K. Garg, learned counsel for the petitioner submitted that Udai Narain was in lawful possession of the property at the time when he inducted Sita Ram as a tenant in the property and as the petitioner is a tenant, the decree -holder is entitled to take symbolic possession and cannot dispossess the petitioner in the execution. He further submits that being a tenant he is entitled to the protection of the Rajasthan Premises (Control of Rent and Eviction) Act, which provides that a decree for possession cannot be passed against a tenant unless the requirements of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act are complied with. Mr.Garg also submitted that the learned trial Court passed the impugned order without any proper enquiry. Controverting the contentions made by Shri Garg on behalf of the petitioner, the learned counsel for the respondents submitted that the order passed by the learned Additional District Judge is in conformity with the provisions of law. The application was rightly dismissed as it was not maintainable. He also submitted that the revision petition is not maintainable as the questions raised by the learned counsel for the petitioner are all questions of fact rightly considered by the lower Court. The main dispute is about the fact as to whether Sita Ram is a tenant or not, or even if he is a tenant from what date his tenancy commences. On this point, Mr. Bardhar learned counsel for the respondent, submits that there is a clear finding given by the learned lower Court that the tenants were inducted in the suit premises after the institution of the suit.;