TATIA, J. - (1.) THE appellant is aggrieved against the judgment and decree passed by the Additional Civil Judge (J. D.) No. 2, Jodhpur in Civil Original Case Case No. 546/1987 dated 19. 7. 2001 and against the judgment and decree dated 10. 2. 2004 affirming the judgment and decree of the trial Court passed by the Court of Additional District Judge No. 3, Jodhpur in Civil Appeal (Decree) No. 23/2001. THE trial Court passed the decree for eviction against the appellant-tenant on the ground of personal bonafide necessity of the land-lord plaintiff-Labh Chand (now deceased ). THE appeal of the tenant-appellant was dismissed by the appellate Court and hence this second appeal.
(2.) ACCORDING to the learned counsel for the appellant, the appellant took on rent certain properties from Thakur Vikram Singh. Thereafter, in the year 1980, i. e. on 14. 7. 1980 executed a fresh lease-deed in favour of Thakur Vikram Singh's daughter Miss Urvashi, who was minor in the year, 1980, therefore, the deed was executed through Miss Urvashi's natural guardian her mother Smt. Shobha Rani. The learned counsel for the appellant submitted that the appellant defendant agreed to purchase the remaining rented premises from said Miss Urvashi through her natural guardian Smt. Shobha Rani by entering into an agreement on 13. 5. 1984 for a consideration of Rs. 10,000/- and paid Rs. 2,000/- as advance. Smt. Shobha Rani, on behalf of Miss Urvashi, executed a sale-deed on requisite stamps on 22. 5. 1984. In this sale-deed dated 22. 5. 1984, it was clearly mentioned that relationship between landlord Urvashi and the tenant-appellant come to an end and the appellant is now in possession of the rented premises as owner of the property. After signing the sale-deed on 22. 5. 1984, the vendor Smt. Shobha Rani, guardian of Miss Urvashi, did not turn up for registration of the document then the appellant-tenant immediately on the next day only, i. e. 23. 5. 1984, gave telegraphic notice to Smt. Shobha Rani for execution of the sale- deed. Instead of executing sale-deed for the property in question in favour of the tenant, Shobha Rani, on behalf of Urvashi, got the sale-deed registered on 24. 5. 1984 in favour of the plaintiffs. ACCORDING to the learned counsel for the appellant, this deed was ante-dated and has been shown as executed on 19. 5. 1984. The appellant-tenant, therefore, filed suit (C. O. No. 42/1985) for specific performance of the contract on 1. 6. 1985 and also lodged criminal complaint against Shobha Rani, which was sent for investigation to the concerned police station and according to the tenant-appellant, cognizance was taken by the Court for the offences committed by Shobha Rani. The plaintiffs when obtained the sale-deed in their favour through Shobha Rani on behalf of Urvashi which was registered on 24. 8. 1984, filed the suit for eviction against the appellant- tenant on 30. 9. 1985 in the trial Court for eviction of the appellant-tenant on the ground of default and personal bonafide necessity of suit property for the landlord. The suit was contested by the appellant-tenant by filing detail written statement. It appears from the record that the plaintiffs sought stay of the present eviction suit under Section 10,c. P. C. on the ground of pendency of earlier filed suit No. 42/1985) filed by defendant for specific performance of contract dated 13. 5. 1984 but the proceedings of present suit No. 190/85 (New No. 546/1987) was not stayed by the trial Court vide order dated 17. 5. 1988 and the tenant-appellant preferred S. B. Civil Revision Petition No. 384/88 to challenge said order dated 17. 5. 1988 which was dismissed by this Court vide order dated 4. 5. 1989. In the Court below, both the parties led their evidence on the issues framed by the trial Court which includes specific issue whether the defendant is tenant of the plaintiffs and whether the suit premises is required by the plaintiffs for their personal and their family need reasonably and bonafidely. A specific issue was framed on the plea taken by the defendant that the seller (who sold the property to the plaintiffs subsequent to signing sale deed in favour of defendant) terminated the lease of the defendant-tenant specifically in the sale-deed (which was not registered) executed in favour of the defendants and if it is so then what is the effect of it on the suit. Both the Courts below held the defendant to be the tenant of the plaintiffs as the plaintiffs became owner of the rented property by virtue of sale- deed executed in favour of the plaintiffs by defendant-tenant's previous land-lord and owner of the property. The trial Court, while deciding issue no,5, about the effect of the alleged unregistered sale-deed in favour of the defendant, held that since the sale-deed (Ex. 4) in favour of defendant is unregistered document, therefore, it has not created any right, title and interest in the defendant nor it has resulted into end of the relationship of the landlord and tenant between the tenant and his earlier landlord. The trial Court granted decree for eviction of appellant-tenant on 19. 5. 2001 and the appellate Court upheld the decree. The first appellate Court observed that from the alleged unregistered sale-deed Ex. A. 1, (on the basis of which suit for specific performance of the contract for purchase of the property in dispute was filed by the appellant tenant) alleged to have been executed in favour of the defendant, there appears that date 22. 5. 1984 was inserted subsequently. The appellate Court also held that Ex. A. 1-sale-deed in favour of the defendant is suspicious and the defendant's own witness, the vendor of the property who sold the property to the plaintiffs, clearly stated that she sold the property to the plaintiffs by registered sale- deed. The appellate Court also rejected the defendant's contention that by deed Ex. A. 1, the relationship of the landlord and tenant between the defendant-tenant and his previous landlord came to an end. For this, the appellate Court held that the terms of deed could have been effective only after registration of the said deed. Further, the appellate Court observed that if there was any intention of the parties to terminate the tenancy forthwith then there was no reason for writing in the deed itself that the defendant is in occupation of the property as tenant. The appellate Court also considered the arguments of the parties on the question of personal bonafide necessity and thereafter rejected the defendant's all defences and upheld the decree for eviction of the defendant by impugned judgment and decree dated 10. 2. 2004. The present appeal was preferred by the defendant-tenant before this Court on 17. 5. 2004 but without impleading one of the co-plaintiff. However, the appeal was registered and it remained pending for various reasons and one of the reasons appears to be pendency of tenant's suit for specific performance of the contract which was now dismissed by the trial Court on 22. 10. 2007 and according to the learned counsel for the tenant-appellant, the tenant-appellant has preferred appeal to challenge the judgment and decree dated 22. 10. 2007.
(3.) THE appeal was argued by the learned counsel for the appellant in detail. THE learned counsel for the respondents- landlord raised objection about the maintainability of the appeal on the ground of non-joinder of necessary party, i. e. one of the co-plaintiff in whose favour the decree for eviction was passed by the trial Court and upheld by the appellate Court. After arguments of the learned counsel for the respondents on merits also, the appellant submitted an application under Order 1 Rule 10,c. P. C. for impleading the said left out plaintiff in this appeal. It is stated that the plaintiff No. 2 was inadvertently not impleaded as party in this appeal and the mistake is bonafide mistake. THE appellant prayed that now the name of plaintiff No. 2 may be permitted to be mentioned in the appeal as respondent No. 2. THE appellant also submitted an application under Order 41 Rule 27,cp. C. after completion of his arguments on merits of appeal and sought permission to produce the copy of the telegram dated 23. 5. 1984, which according to the plaintiffs, was sent to above Smt. Shobha Rani by defendant-tenant through his advocate when Smt. Shobha Rani did not turn up for registration of sale- deed in favour of defendant-appellant. By this telegram, the appellant-tenant informed Shobha Rani that she should reach to the office of Sub-Registrar at 11 a. m. (on 24. 5. 1984), otherwise the sale-deed will be presented for its registration before the Sub-Registrar obviously by the purchaser appellant-tenant. The learned counsel for the respondents landlord vehemently submitted that both the applications deserves to be dismissed because of the reason that none of the application discloses any reason for not filing the such important document in time and there is no explanation for not impleading plaintiff No. 2 as party in this appeal. It is also submitted that by this time, the appeal against the respondent-plaintiff-landlord Subh Kanwar has already become barred by time as per Order 41 Rule 20,c. P. C. It is also submitted that there is no reason given that why Subh Kanwar was not impleaded as party in the appeal when she was party throughout the litigation and this fact was in the knowledge of the appellant-defendant. So far as photo-stat copy of the telegram is concerned, for its production, virtually no reason, why this was not produced in the last more than 20 years of litigation, apart from the fact that there exists no reason for not submitting the document in the trial Court and before the first appellate Court and in this second appeal along with the second appeal when the appellant-tenant was knowing well the importance of the documents if it was in existence. I considered the submissions of the learned counsel for the parties and perused the record. ;