Keli Devi and Others vs Anandi Lal

Vineet Kothari, J.—The appellants/defendants, who lost the legal battle before the two courts below have preferred this second appeal assailing the judgment and decree dated 14.12.2012 passed by learned Additional District Judge, Sojat City, District: Pali, in Civil Appeal No. 18/2012-Smt. Keli Devi and Anr. Vs. Anandi Lal, whereby he dismissed the appellants/defendants'' appeal and affirmed the judgment and decree dated 11.04.2012 passed by learned Civil Judge (Jr. Division), Sojat City, District: Pali, in Civil Original Suit No. 25/2009-Anandi Lal Vs. Keli Devi and Anr., whereby the suit filed by the respondent/plaintiff against the appellants/defendants for eviction and mesne profit was decreed in favour of plaintiff.

The operative and relevant portion of the judgment and decree dated 11.04.2012 of the learned trial court is quoted herein below for ready reference:-

The first appeal filed by the appellant/defendant also came to be dismissed by the lower appellate court on 14.12.2012 and the relevant findings of the appellate court as contained in the judgment and decree are quoted herein below for ready reference:-

The respondent/plaintiff, Anandilal, filed suit for eviction and recovery of possession of the house and mesne profit while alleging therein that on 15.04.1997 he purchased the suit property from one Smt. Kamla Devi, under a registered sale deed. According to plaintiff, initially the suit premises was in the ownership of Smt. Roop Kanwar, who in her lifetime executed a Will in favour of Smt. Kamla Devi on 29.05.1996, who in turn sold the same to the present respondent/plaintiff. The defendant was put in possession of the suit premises since 08.11.1980 and a rent note was executed on 29.11.1980 executed by the defendant in favour of Smt. Roop Kanwar. After purchasing the said house, the plaintiff informed the defendant apprising them the fact of purchasing the suit premises. The defendants, however, have not paid the amount rent and thus became defaulter. The defendants made material alterations in the suit premises without prior permission of the plaintiff and the so also the defendants are having other alternative accommodation. The plaintiff gave a notice dated 02.01.2009 u/s. 106 of the T.P. Act terminating the tenancy and asked them to hand over the vacant possession of the suit premises.

The appellants/defendants upon receipt of the summons filed their written statement while denying the relationship of tenant and landlord, the defendants pleaded that they are in possession of the suit premises since 50 years. The defendants also questioned the validity of Will executed by Smt. Roop Kanwar in favour of her daughter Smt. Kamla Devi, from whom the plaintiff purchased the suit premises. He, therefore, submitted that there is misreading of the evidence in the present case and the substantial question of law should be framed in the present appeal and the same deserves to be answered in favour of appellant/defendant.

The appellants/defendants along with present second appeal have also filed an application under Order 41 Rule 27 CPC for seeking to place on record the receipt, allegedly issued by Smt. Roopi Devi in favour of defendants, Keli Devi. The appellants/defendants have stated that the suit premises was purchased by them on 05.02.1975. The said Receipt does not bear the date, on which it was allegedly executed. The said document was not produced before the courts below and for non-production of said document before the two courts below, no reasons has been assigned by the defendants/appellants; and it has been merely stated that the said document was in possession of the defendants, however, now at the stage of second appeal they want to produce the same.

Having heard the learned counsel for the parties, this Court is of the opinion that no substantial question of law arises in the present case requiring consideration by this Court under Section 100 of Code of Civil Procedure, 1908. This Court also finds no force in the application filed by the appellants under Order 41 Rule 27 CPC and the same is, accordingly, rejected.

Consequently, the present second appeal filed by the appellants/defendants is found to be devoid of any merit, and the same is hereby dismissed. The decree of possession and eviction granted by the two courts below is upheld. No costs. A copy of this judgment be sent to the concerned parties and the courts below forthwith.

The appellants/defendants/tenant shall hand over the peaceful and vacant possession of the suit shop to the respondent-plaintiff within a period of three month from today i.e. on or before 30.04.2015 and shall pay mesne profit @ Rs. 2000/- per month commencing from February, 2015 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondent/plaintiff also and in case there is any default in payment of mesne profit, the period of three month for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellant/defendant/tenant shall also clear all the arrears of rent and mesne profit and pay the same to the respondent/plaintiff within three months from today, otherwise the same will bear interest @ 9% per annum. The appellant/tenant shall also not sub-let, assign or part with the possession of the suit shop or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and if it is so done, the same would be treated as void. The appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within three months and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit premises is not handed over to the respondent-plaintiff within a period of three month from today i.e. on or before 30.04.2015 or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondent-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to both the learned courts below and both the parties forthwith.