Hon'ble JAIN, J. - (1.) THE instant second appeal, under Section 100 of the Code of Civil Procedure, on behalf of the landlord- plaintiff-appellant (for short, `the plaintiff-appellant') Roshan Bai was admitted by this Court on 8th of October, 1985 and following substantial questions of law were formulated:- ``1. That whether the facts and circumstances of the case, on the basis of pleadings can it be said that it is a default (wrongly written as ``default'' in place of ``denial'') of title as if so whether the plaintiff is entitled for a decree? 2. Whether in the facts and circumstances of this case the lease-deed can be used as rent note?''
(2.) DURING the course of arguments, this court further formulated following additional substantial questions of law on 3rd of August, 2006:- ``1. Whether, in the facts and circumstances of the present case, the finding of both the courts below in respect of issue No. 1 is perverse and based on misreading of evidence? 2. Whether the suit of eviction of tenant can be converted into a suit for title in respect of third person? 3 Whether Exhibit-1, the rent-note, is admissible in evidence fully or it is admissible only for collateral purpose? Arguments of both the parties were heard on aforesaid substantial questions of law involved in this second appeal. Briefly stated the facts of the case for adjudication of the aforesaid substantial questions of law involved in this second appeal are that the plaintiff-appellant filed a suit for eviction against the defendant-respondent on 9th of March, 1970 in the lower court on the ground of default in making the payment of monthly rent, bona-fide necessity of the rented premises and denial of title of the plaintiff-appellant by the defendant respondent in respect of rented premises. It was pleaded in the plaint that there was one piece of land belonging to one Raj Bahadur S/o of Shri Shiv Shankar and out of this land, a land measuring 24 feet east west and 13.6 feet north south was taken on rent by the defendant-respondent Madan Lal for a period from `Kaartik Sudi Ekam Samvat 2014 to Ashaad Sudi 15 Samvat 2015' (nine months) at the rate of Rs. 5.50p. per month and the defendant-respondent Madan Lal took possession thereof and paid Rs. 10/- towards rent. The defendant-respondent Madan Lal executed a rent-note date 17th of November, 1957 (Exhibit-1) in favour of Raj Bahadur and the original `teharir' i.e. rent-note is in possession of Raj Bahadur. The description of the rented/disputed land is given in Para No. 1 of the plaint. It was further pleaded that Raj Bahadur sold his aforesaid rented land as well as his land adjacent thereto situated towards the western side through registered sale-deed dated 11th of July, 1969 (Exhibit-6) to Nand Lal S/o of Shri Jagannath, and information about this sale was given by Raj Bahadur as well as Nand Lal, both, to defendant Madan Lal and it was directed that now rent may be paid to Nand Lal. Thereafter Nand Lal sold this land, purchased by him from Raj Bahadur, to plaintiff Roshan Bai through registered sale-deed dated 3.12.1969 (Exhibit -17) and information of this sale was also given by Nand Lal as well as the plaintiff to defendant Madan Lal and the defendant was directed to pay the rent of the rented land, in dispute, to plaintiff Roshan Bai. It was further pleaded that defendant Madan Lal paid the rent to Raj Bahadur in the sum of Rs. 10/- only during the period from 17.11.1957 to 11.7.1969, and the remaining rent was not paid by him. Thereafter no rent was paid to Nand Lal or to plaintiff Roshan Bai, therefore, he has committed a default in making the payment of rent continuously for more than six months and, as such, the plaintiff is entitled to get a decree of eviction in her favour against the defendant. The plaintiff also sought eviction on the ground of personal bonafide necessity of rented land. It was also pleaded that the plaintiff served a notice dated 20.11.1969 (Exhibit 8) on the defendant, terminating his tenancy and to handover the possessions of the same to the plaintiff. The notice was received by the defendant and the defendant gave reply (Exhibit 19) to the notice through his Advocate Shyam Kishore to Advocate Ramesh Goyal, counsel for the plaintiff. In the reply to the notice it was stated that neither the land in dispute was belonging to Raj Bahadur nor the same was taken on rent from Raj Bahadur. It was also stated that the defendant is the owner of the land in dispute and he denied the relationship of landlord and tenant. Thereafter the plaintiff again served a notice dated 10.1.1970 (Exhibit-14), forfeiting the tenancy of the defendant, which was received by the defendant on 12.1.1970 and, as such, the plaintiff is entitled to get a decree of eviction on this ground i.e. `denial of title' also from the defendant. The arrears of rent and mesne profit were also claimed in the plaint. The defendant-respondent filed his written statement on 16.12.1970, wherein it was pleaded that the rent note (Exhibit-1) is not admissible in evidence as it is unstamped and unregistered. Para 1 of the plaint, relating to measurement of the land in dispute, was denied. Para 5 of the plaint, relating to bonafide necessity of the rented premises, was denied. Para 6 of the plaint, relating to denial of title, was denied with explanation. In additional pleas in the written statement, the defendant pleaded that the defendant and his father are in possession of the disputed land for last 32 years and no one has objected the possession of the defendant, therefore, the defendant has acquired the land by way of adverse possession. It was also pleaded that the disputed land was belonging to one Devi Prasad and his sons are alive, who are legal heirs of Devi Prasad. Raj Bahadur has no right whatsoever in the disputed land, therefore, he had no right to sale the same and the plaintiff has no right whatsoever in the disputed land. It was also pleaded that Raj Bahadur was not in possession of the disputed land nor he gave possession of the same to defendant nor the defendant executed any rent note in favour of Raj Bahadur. The other pleas were also taken in the written statement and it was urged that the suit of the plaintiff be dismissed.
(3.) ON the basis of the pleadings of the parties, the learned lower court framed 12 issues on 9th April, 1971 and the same have been reproduced in the judgment dated 6.2.1981 of the lower court. Issue No. 1 framed in the present case is whether defendant Madan Lal took disputed land on monthly rent of Rs. 5.50 P. from Raj Bahadur for the period from Kaartik Sudi Ekam Samvat 2014 to Ashaad Sudi 15 Samvat 2015 and got the possession of the same and paid Rs. 10/- towards the rent for it and the defendant Madan Lal executed rent-note dated 17.11.1957 and signed it. Issue No. 2 is whether Raj Bahadur sold the disputed land to Nand Lal vide sale-deed dated 11.7.69, and Nand Lal and Raj Bahadur gave notice about it to defendant. Issue No. 3 is whether Nand Lal sold the disputed land to plaintiff Roshan Bai vide sale deed dated 3.12.1969. Issue No. 4 is in respect of default in making the payment of rent continuously for more than six months. Issue No. 5 is in respect of bonafide necessity of the rented premises and whether the plaintiff is entitled to get a decree of eviction on this ground. Issue No. 6 is whether the valid notice for terminating tenancy of the defendant was given to the defendant. Issue No. 7 is in respect of denial of title of the rented premises by the defendant. Issue No. 8 is whether the plaintiff is entitled to receive rent and costs. Issue No.9 is whether the suit is not on proper stamps. Issue No. 10 is whether there is adverse possession of the defendant and his father on the disputed land. Issue No. 11 is whether the disputed land belongs to Devi Prasad, and that Raj Bahadur had no right to sale it and what is the effect of it on the suit. Issue No. 12 is whether the defendant is entitled to receive special costs of Rs. 500/-. Additional issue i.e. issue No. 5-A was also framed on 24.11.1976, which is in respect of comparative hardship of the rented premises. In support of her case, the plaintiff examined PW. 1 Raj Bahadur (original owner of the disputed land), PW. 2 Duli Chand (witness of Exhibit 1), PW. 3 Gulab Chand (witness of Exhibit 1), PW. 4 Bhawani Shankar, PW. 5 Shyam Sunder, PW. 6 Nand Lal (to whom the property was sold by PW. 1 Raj Bahadur through Exhibit 6 the registered sale deed dated 11.7.1969), PW. 7 Roshan Bai (the plaintiff), PW. 8 Govind Prakash and PW. 9 Tej Karan. The plaintiff also produced documentary evidence Exhibit 1 to Exhibit 21. The defendant Madan Lal examined himself as DW-1, DW-2 Bherulal, DW-3 Durgalal, DW-4 Prabhulal and DW-5 Sukhlal. After hearing the arguments, the learned lower court, vide its judgment and decree dated 6.2.1981, dismissed the suit of the plaintiff-appellant. The lower court decided all the issues, except issues No. 9 and 12, in favour of the defendant- respondent. Being aggrieved with the judgment of the lower court, an appeal was preferred and, the lower appellate court, vide its judgment and decree dated 18.3.1985, also dismissed the appeal of the plaintiff-appellant. The lower appellate Court, however, decided issue No. 2, 3, 4, 6, 7, 8, 9, 10 and 12 in favour of the plaintiff-appellant and in favour of the defendant-respondent. Issues No. 7 and 8 were decided in favour of the plaintiff- appellant subject to decision of issue No. 1. However, in view of the finding of issue No. 1, the learned lower appellate court dismissed the appeal of the plaintiff-appellant. Hence, this second appeal has been preferred on behalf of the plaintiff- appellant before this court. ;