JAIN, J. - (1.) HEARD learned counsel for both the parties.
(2.) THIS second appeal on behalf of the defendant-tenant, under Section 100 of the Code of Civil Procedure, arises out of a suit for eviction and arrears of rent filed by the plaintiff- respondent against the defendant-appellant, which has been decreed by both the courts below on the ground of denial of title as well as tenancy of plaintiff by the defendant. Briefly stated the relevant facts of the case are as under- The plaintiff filed a suit for eviction, in respect of rented premise, in the trial court, on 29. 1. 1980 wherein it was pleaded that the defendant took the suit premise, the description of which is mentioned in Para 1 of the plaint, from one Saubhagmal adopted son of Nathulal, on monthly rent of Rs. 8/- and executed a rent-note dated 12th July, 1978 (Exhibit-1) in favour of Saubhagmal. Shri Saubhagmal gifted the said property to the plaintiff through registered gift-deed dated 26th November, 1979 (Exhibit-2 ). The defendant has not paid the monthly rent of the rented premise since January, 1979, therefore, the defendant is a defaulter and thus liable to be evicted therefrom. Shri Saubhagmal also gave a right to the plaintiff to recover the due rent from the defendant, therefore, the plaintiff is entitled to recover a sum of Rs. 96/- for 12 months for the period from 1. 1. 1979 to 31. 12. 1979. It was also pleaded that tenant has also willfully caused substantial damage to the rented premise. It was further pleaded that there is a bona-fide requirement of the rented premise to plaintiff. The defendant filed his written-statement, on 19. 5. 1980 wherein he denied the contents of the plaint and pleaded that he never executed any rent-note in favour of Saubhagmal nor he took the disputed property on rent from him. He never remained tenant of Saubhagmal. Shri Saubhagmal has no connection whatsoever with the disputed house and the owner thereof is Mst. Gopi W/o Mohanlal, who had mortgaged the disputed property with the defendant about 8 to 10 years ago, and, as such, the defendant is in possession of the disputed property. It was also pleaded that the defendant is not tenant of any person in the disputed property. The plaintiff filed an application in the trial court on 25th July, 1980 stating therein that the defendant, in his written-statement, has denied the title and tenancy of the plaintiff as well as Saubhagmal, therefore, he has denied the title of landlord, therefore he is liable to be evicted on this ground also, and prayed for inclusion of this ground of eviction also in the suit and to frame an issue on it also. A copy of application was served upon the learned counsel for the defendant and the case was fixed for reply and arguments on application on 21st August, 1980. The defendant did not file any reply to the said application. The trial Court, on the basis of pleadings of the parties and application, framed four issues on 21st August, 1980. Issue No. 1 was- as to whether the defendant took the disputed house on monthly rent of Rs. 8/- from Saubhagmal and executed a rent-note-agreement dated 12th July 1978. Issue No. 2 was- as to whether the defendant is a tenant in the disputed house of the plaintiff. Issue No. 3 was - as to whether the defendant has denied the title and tenancy of landlord and he is liable to be evicted. Issue No. 4 was relating to relief. In support of their contentions, both the parties led oral and documentary evidence and, after hearing both the parties and examining the record of the case, the trial Court, vide its judgment dated 5th March, 1990, decided all the issues in favour of the plaintiff and against defendant, and consequently decreed the suit for eviction against the defendant from the disputed house.
(3.) BEING aggrieved with the same, an appeal was preferred by the defendant. The first appellate court, vide its judgment and decree dated 7th March, 2001, affirmed the finding of the trial Court on all the issues and dismissed the appeal of the defendant. Hence, the defendant-appellant preferred this second appeal before this Court on 27th March, 2001. During the pendency of this appeal, the learned counsel for the appellant filed two applications, one under Order 41 Rule 27 of the CPC contending therein that during the pendency of the second appeal the appellant No. 2, who is son of appellant No. 1, has purchased the house of which the disputed property is a part, vide registered sale-deed dated 7th May, 2001, from Smt. Gopi Bai. A certified Photostat copy of the registered sale-deed dated 7th May 2001 has been annexed with the application and it has been prayed that it may be taken on the record. The another application is to direct the respondent to produce the registered document executed by Smt. Sunder Bai in favour of PW. 2 Saubhagmal as stated by Saubhagmal in his statement. Both the applications are pending, which are also being disposed of by this order. The learned counsel for the appellant Shri N. K. Maloo contended that the disputed house was belonging to one Smt. Sunder Bai W/o Nathulal, who executed a registered `will' dated 28th December, 1967 (Exhibit D-1) in favour of Smt. Gopi Bai Daughter of Kesarlal, who mortgaged the disputed house with the defendant and, as such, defendant is in occupation of the disputed house. The defendant never executed rent-note-agreement dated 12th July 1978 in favour of Saubhagmal. He further argued that, during the pendency of this second appeal, the appellant No. 2 S/o Banne Singh has purchased the disputed property through registered sale-deed dated 7th May 2001 from Smt. Gopi Bai, therefore, he has now become absolute owner of the property, in dispute. He has filed a copy of sale-deed in this Court with application under Order 41 Rule 27 of the CPC. ;