Vineet Kothari, J. - (1.) THIS appeal Under Section 96 of CPC is directed against the judgment and decree dt. 02.03.2007 passed by the learned ADJ No. 4, Jaipur City, Jaipur dismissing the suit filed by the plaintiff Kanhaiya Lal Sharma as barred by principles of res -judicata.
(2.) THE litigative history of this long drawn battle, in brief is like this. The plaintiff Kanhaiya Lal in the plaint of the present suit filed for declaration and permanent injunction stated that he was working as cook with late Rao Bhagwat Singh Ji and also did Seva Pooja in his temple and being happy with his service, the said Rao Bhagwat Singh gave a gift of suit property comprising of two rooms on the ground floor and one at first floor constructed thereon and open land near Ghodon Ki Dhani in Jaipur. The said Rao Bhagwat Singh expired on 25.11.1967 and he left behind three wives Smt. Ghanshyam Kanwar, Smt. Sajjan Kanwar and Smt. Subh Deveshwari who filed a partition suit which was decreed upon compromise on 31.05.1974. The portion which fell in the share of Smt. Sajjan Kanwar was sold through her power of attorney holder Shri Megh Singh Bhati to Smt. Ishwari Devi who in turn sold the property to defendant No. 2 Smt. Madhu Chaudhary on 29.03.1986. Thereafter Smt. Madhu Chaudhary filed a suit for eviction against the plaintiff Kanhaiya Lal Sharma relating to suit property on the ground of default, denial of title and reasonable and bona fide necessity. On 13.11.1997, the present plaintiff appellant Kanhaiya Lal filed a written statement in the said suit and denied the relationship of landlord and tenant and alleged that in the year 1938 -39 these premises were given to him by way of gift by late Rao Bhagwat Singh. The said plea of gift was sought to be raised by seeking an amendment in the written statement by way of application under Order 6 R.17 CPC filed on 23.02.1999 which was allowed and a amended written statement was filed on 17.04.1998. Accordingly, besides other issues the learned trial Court framed issue No. 12 -A in the said suit No. 106/1998 which was as under: 12A. Whether Rao Bhagwat Singh Ji gave the disputed property in the year 1938 -39 to the defendant (Kanhaiya Lal) by way of gift deed and he is in possession of the said suit property as owner since then? While deciding the said issue the learned trial Court found vide its judgment dt. 31.03.2004 that the defendant had failed to prove the said gift deed as the same was not even signed by the donor nor the same bore any signatures of witnesses and was merely a photo copy of a document which was marked as EX.A -4. Therefore, the said document was not found proved by the learned trial Court and on the contrary it was found that the said suit premises were taken on rent by the defendant Kanhaiya Lal at the rate of Rs. 8/ - per month vide EX.9 on 28.04.1958. Accordingly, the decree of eviction was passed deciding all the issues against the defendant. The appeal against that decree also failed vide judgment dt. 16.12.2004 passed by the learned ADJ No. 5, Jaipur City, Jaipur. The second appeal carried to this Court also failed on 02.01.2006 (S.B. Civil Second Appeal No. 73/2005 -Kanhaiya Lal v. Smt. Madhu Chaudhary, decided by Hon ble the Chief Justice Shri S.N. Jha). In the said appeal, the substantial question framed for consideration by the Court included the question relating to issue No. 12 -ka which is also reproduced hereunder: Whether the finding with regard to issue No. 12 -ka rendered by the Courts below are vitiated on account of misreading of the document itself and whether the patta or gift issued by Thikana required registration?
(3.) THE Court found that in view of the concurrent findings of fact holding the appellant as tenant in the suit premises which cannot be set -aside in second appeal, the claim of gift having been rejected by both the Courts below it is not open to the appellant to question the right and title of Smt. Sajjan Kanwar or the validity of compromise decree. By virtue of the compromise in the partition suit after the death of Rao Bhagwat Singh, Smt. Sajjan Kanwar stepped into his shoes and became landlord of the suit premises, and by virtue of purchase initially Smt. Ishwari Devi and subsequently respondent Smt. Madhu Chaudhary became the owner and the appellant became their tenant. Thus, the second appeal was dismissed by this Court.;