- (1.) Brief facts of the case are that the plaintiff Miss Padma, daughter of one Babulal, filed the suit for possession of the shop in dispute through her guardian Birdi Chand on 12.11.1868. As per the plaintiff's case, shop in dispute was taken on rent by plaintiff-Padma,s father Babulal, which was situated in the Taparia Building at Jalori Gate, Jodhpur and was having number GF-13. The rent of the suit premises was Rs.12/- per month. One Badri Das Pungalia used to recover the rent of the suit shop and vide bill no.9097 dated 12.5.1968, rent upto Baishakh sudi-15,i.e. upto 12.5.1968 was demanded and it was paid to said Badri Das Pungalia for which issued receipt no.2500 dated 20.5.1968. The plaintiff's father Babulal expired on 30.5.1968. According to the plaintiff, till the death of said Babu Lal, the suit shop was in possession of the deceased Babu Lal and, thereafter, the plaintiff became the owner of the articles lying in the suit shop and the tenancy also devolved upon her. After the death of plaintiff's father, she was living in the guardianship of her maternal grand father. Therefore, the plaintiff's maternal grand father went to pay rent of shop to defendant no.1(date not given) then defendant no.1 told that the possession of the suit shop was taken over by defendant no.1-Govind Narayan. In this way, the plaintiff and her guardian came to know about the illegal taking over the possession of the suit shop by the defendant no.1. The plaintiff served upon a notice through her advocate upon the defendants on 23.9.1968 but despite this notice, the possession of the suit shop was not delivered to the plaintiff, therefore, the plaintiff filed the suit for possession of the suit shop.
(2.) The defendants submitted written statement and admitted that the suit shop is of the defendants and it was let out to deceased Babu Lal in the Samvat Year 2024, for which a rent deed was executed in favour of late Jai Narayan Taparia, who was grand-father of the defendants. The measurement of the shop in dispute is 4'x4'x3' only and it is stated that premises was so small that without help of a projection extending the said shop, no business could have been done in the rented premises. It is stated that at the time of giving the suit shop on rent, a wooden plank was fixed to extend the shop. The plaintiff's case is that wooden plank was of the plaintiff's father whereas defendants stated that it was of the defendants. It is admitted that Badri Das Pungalia used to collect the rent of the shop from the tenants of the building including from deceased Babu Lal. According to the defendants, deceased Babu Lal was sick since last long period and the sickness of Babu Lal was increasing and he became very weak. There was no body to look after the business of the tenant Babulal whatever small it may be. Therefore, he asked the defendants to give the bill of the rent for the month ending Baishakh sudi-15, 2024 so that he may pay the rent and vacate the suit premises. Thereafter, in fact the bill was given to said Babu Lal and he paid the rent and surrendered the possession of the suit shop. Since the suit shop was not opened for some time before it was vacated by the tenant which is evident from the fact that the electricity was not consumed by the tenant Babu Lal for this period. The defendants admitted bill dated 12/5/1968 and the receipt dated 20/5/1968. It is stated that in view of the above facts, the plaintiff's suit deserves to be dismissed as tenant himself surrendered the tenancy and delivered the possession of the shop to the landlord in the life time. The trial court framed as many as nine issues which are about whether the plaintiff is daughter of deceased Babu Lal and Birdi Chand is the next friend of the plaintiff and has right to file suit on behalf of the plaintiff, whether the wooden plank which was fixed in front of the shop, was in the ownership of Babu Lal, whether the suit shop was in possession of Babu Lal till his death and his goods were lying in the shops even after his death, whether the defendants forcibly took possession of the suit shop and the plaintiff is entitled to Rs.300/- as cost of the articles of deceased Babu Lal and also entitled to take possession of the suit shop from the defendants. On the plea taken by the defendants, the trial court also framed issue whether the court fee is insufficient and whether the suit has been filed without seeking permission of the court by the next friend and the suit is defective because of misjoinder of the causes of action and whether Smt. Ramkanwari and Smt. Yamuna Maloo are necessary parties in the suit.
(3.) The trial court held that the suit was competent as it has been filed by the next friend of the plaintiff and also held that the plaintiff is daughter of deceased Babu Lal. The trial court held that deceased Babu Lal was the tenant in the suit shop and he did not vacate the suit shop before his death. The rent was paid upto 20/5/1968 and the evidence of the defendants' witness particularly of Chetan Das cannot be relied upon and the defendants illegally took possession of the suit shop, however, the trial court held that the wooden plank fixed in front of the shop was not of Babu Lal but it was of the defendants. The trial court also held that the plaintiff failed to prove that any goods of Babu Lal were lying in the suit shop, therefore, the plaintiff is not entitled to decree for the said amount of cost of goods from the defendants. The issue of court fee was decided against the defendants. During the pendency of the suit, the next friend Birdi Chand died and the trial court held that, the suit still maintainable because Kedar Das was appointed as next friend of plaintiff-Padma. The plea of misjoinder of causes of action was rejected by the trial court. The trial court ultimately decreed the suit of the plaintiff for possession against the defendants by judgment and decree dated 12/7/1979. Against this judgment and decree dated 12/7/1979, the defendants preferred regular first appeal which was dismissed by the first appellate court by judgment and decree dated 10/3/1983. Hence this second appeal. Following substantial question of law were framed while admitting the appeal on 24/10/1083:- "Whether the finding of the courts below are vitiated on account of mis-reading of evidence and ignoring material evidence.";