Rajesh Kr. Agarwalla vs Rohima Bibi And Ors

This second appeal is by the plaintiff, against the judgment and decree dated 21.12.2006 passed by the learned Civil Judge, Tinsukia in Title Appeal

No. 1/2003, whereby, the learned appellate court allowing the appeal of the defendant dismissed the suit of the plaintiff.

The plaintiff filed Title Suit No. 17/1997 for ejectment of the defendant and mandatoryinjunction against the defendant to dismantle the construction

made over the suit land.

The case of the plaintiff in brief was that the plaintiff purchased the land measuring 2katha 5 lecha covered by Dag No. 343 (Old) 1195 (New) and

periodic patta No. 62 (Old) 22 (New) along with a barrack type kacha house consisting of 16 rooms and an RCC roofed house, consisting of 4 rooms

from the proforma defendant, Noor Jainab by a registered sale deed in the year 1983 and took possession thereof. The defendants No. 1 & 2 were

the tenants under the proforma defendant since 1969 in respect of two rooms in the kacha barrack type house. After few months of occupancy of the

tenanted premises, the defendants No. 1 & 2 failed to pay rent and upon demand by the proforma defendant, the defendants No. 1 & 2 agreed to

vacate the said tenanted premises, but ultimately they did not vacate the premises. At the instigation of the defendants No. 1 & 2, other tenants of the

suit property also refused to pay rent and as such, the proforma defendant proposed to sell the suit property to the plaintiff, to which, the defendants

No. 1 & 2 raised objection. Because of the objection raised by the defendants No. 1 & 2, Tinsukia Development Authority did not issue permission for

transferring the suit property in favour of the plaintiff. However, without the permission of Tinsukia Development Authority, the proforma defendant

executed the sale deed in favour of the plaintiff. Initially, the defendants No. 1 & 2 instituted T.S. No. 51/1983 seeking declaration of right, title and

interest over the suit properties and also permanent injunction restraining the proforma defendant from selling the suit properties. After execution of

the sale deed, the defendants No. 1 & 2 instituted another suit (T.S. 111/1983) for cancellation of the sale deed executed by the proforma defendant in

favour of the plaintiff. After execution of the sale deed, proforma defendant was allowed to stay in four rooms of the kacha barrack type house. On

08.09.1983, taking advantage of absence of proforma defendant, the defendants No. 1 & 2 trespassed into the rooms, which were in occupation of the

proforma defendant and started living there and the defendant No 3 was inducted in the room, which were in occupation of the defendants No. 1 & 2.

Taking advantage of the injunction granted in T.S. No. 111/1983, instituted by the defendants No. 1 & 2, the RCC rooms were also occupied by the

defendants No. 1 & 2 and rented out to defendants No. 6, 7 and 8. The defendants also did not allow the plaintiff and their persons to enter into the

suit land and as such, the plaintiff filed the suit for ejectment of the defendants and also permanent injunction from dismantling the construction made

by them over the suit land.

The defendants No. 1 & 4 contested the suit by filing written statement. Besides raisingformal pleas like, maintainability, bar of res-judicata etc., the

specific case of the defendants was that the plaintiff had no right, title over the suit land and that the suit land belonged to the father of the defendant

No. 1. The defendant No. 1 has been in possession of the suit land since 1969 as owner by right of inheritance and they were never tenant under the

proforma defendant. It was also stated that the RCC construction over the suit land was made by the defendants No. 1 & 2 and they being the owner,

rented out the said RCC rooms to the defendants No. 6, 7 & 8.

4.      On the basis of the above pleading of the parties, learned Munsiff framed the following issues:

(1) Whether the suit is maintainable?

(2) Whether the suit is barred by the principles of res-judicata and without anycause of action?

(3) whether the defendant 1 and 2 were tenants under the proformadefendants in respect of the rooms, described in the schedule ‘B’ or they

have now shifted in the said rooms?

(4) Whether the defendant No. 3 was a tenant under the proforma defendantand whether he had vacated the room let out to him before the suit land

was sold to the plaintiff?

(5) Whether the defendant No. 3 was brought by the defendant No. 1 and 2 and whether he is now in occupation of the rooms described in schedule

‘B’ as a trespasser?

(6) Whether the defendant No. 1 and 2 attorned tenancy with the plaintiff afterthe suit property had been purchased by the plaintiff from the proforma

defendant despite their knowledge of such transfer of the property?

(7) Whether the RCC room described in the schedule ‘C’ of the plaint were letout to some tenants other than the defendants No. 6, 7, 8 and

whether T.S. 92 of 1978 was instituted in respect of the said room by those tenants and the suit land was sold to the plaintiff during pendency of the

said suit?

(8) Whether the defendant No. 1 and 2 are the defaulters?

(9) Whether the defendants No. 1 and 2 have any right over the said RCCrooms of Schedule-C?

(10) Whether the defendant No. 1 and 2 broke open the locks of the RCCrooms described in the Schedule ‘C’ and let out the same to

defendant No. 6, 7, 8?

(11) Whether the house described in schedule ‘E1’ and ‘E2’ were constructed bythe defendant No. 1 and 2 during pendency of this suit

despite injunction and whether they let out the said rooms to the defendants No. 4 and 5?

(12) Whether the defendants No. 4 and 5 are trespasser and are liable to beevicted?

(13) Whether all the defendants are liable to be evicted from the suit property?â€​

The plaintiff examined one witness in support of his case and defendants also examinedfour witnesses and after hearing both the sides, learned

Munsiff by the judgment and decree dated 24.02.2002 decreed the suit. Aggrieved, the defendants preferred an appeal and the learned appellate court

by allowing the appeal dismissed the suit of the plaintiff.

Aggrieved by the judgment and decree of the first appellate court, the plaintiff preferredthe instant appeal, which was admitted to be heard on the

following substantial questions of law.

“(i) Whether the finding of the learned lower appellate court that the suit is barred by the principles of Res-judicata as embodied in Section 11 of

the CPC is perverse?

(ii) Whether any transfer of immovable property, on the doctrine of lis pendens underSection 52 of Transfer of Property Act, 1882, ex-facie is invalid

as has been held by the learned lower appellate court?

(iii) Whether the finding at tenancy of defendant No. 1 and 2 has not been proved asrecorded by the learned lower appellate court is perverse of the

evidence on record?â€​

Learned Sr. Counsel Mr. G.N. Sahewalla, assisted by Ms. B. Sarma for the appellant andlearned counsel Mr. S. Ali, for the respondent were

heard.

The defendants raised a plea in their written statement that the T.S. No. 17/1997 wasbarred by principle of res-judicata in view of the previously

instituted suit by the defendant No. 1 being T.S. No. 51/1983 as well as T.S. No. 111/1983 pending in the court of Munsiff No. 1 and 2 respectively.

Learned Munsiff rejected the plea of res-judicata with the observation that reliefs sought in previous and subsequent suits were not similar and

therefore, the suit was not barred by doctrine of res-judicata. Learned first appellate court overturned the said finding of the learned Munsiff and held

that the suit was barred by res-judicata. The appellate court observed as under:

“Moreover, it is an admitted fact that there was a previously instituted suit pending between the parties in respect of the same subject matter also

the subsequently instituted suit is barred by principle of res-judicataâ€​.

Learned Sr. Counsel Mr. G.N. Sahewalla submits that the previous suit referred to abovei.e. T.S. 51/1983 and 111/1983 were pending at the

relevant time and as such there was no question of res-judicata.

Section 11 of the CPC reads as under:

“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former

suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try

such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.â€​

A plain reading of the above provision would show that the essential requirement forinvoking the principle of res-judicata are (i) the matter directly

and substantially in issue in previously instituted suit shall also be directly and substantially is issue in the latter suit, (ii) the former suit has been heard

and finally decided, (iii) the issue has been heard and finally decided in the former suit, (iv) the former suit and the latter suit must be between the

same parties or litigating under the same title or parties claiming under the parties and (v) the expression ‘former suit’ means the suit decided

earlier, no matter, whether instituted earlier or not. In the instant case, the plea of res-judicata raised by the defendants in view of pendency of T.S.

No. 51/1983 and 111/1983 and no evidence was brought on record to show that those suits were finally heard and decided. Since evidently, the T.S.

No. 51/1983 and 111/1983 were pending and not finally decided, there was no question of res-judicata. Both the trial court as well as first appellate

court while deciding the issue of res-judicata, apparently proceeded on wrong premises. Be that as it may, there was no evidence brought on record to

show that the previously instituted suits between the same parties and involving issue directly and substantially the same were finally decided. Rather,

the observation of the learned first appellate court, shows that the previous suits were pending. Admittedly the only plea raised was that two suits filed

by defendants were pending. Since apparently, the previously instituted suits were still pending and not decided finally, there was no question of

resjudicata. Therefore, the substantial question of law No. 1 is decided accordingly.

The defendants specifically pleaded in the written statement that the plaintiff filed T.S.No. 51/1983 for declaration of right, title and interest over

the suit land and permanent injunction restraining the proforma defendant from selling the suit land and during pendency of the said suit, the proforma

defendant executed the sale deed. There was no dispute that the sale deed was executed during pendency of the suit instituted by defendants No. 1

against the proforma defendant praying for declaration of right, title and interest and injunction restraining the proforma defendant from selling the suit

land. The defendant No. 1 also stated in evidence that the T.S. No. 51/1983, instituted by her was pending before the court. On the basis of such

pleading and evidence, learned first appellate court held that the sale deed executed by the proforma defendant in favour of the plaintiff during

pendency of T.S. No. 51/1983 was illegal and void, in view of bar created by Section 52 of the Transfer of Property Act (T.P.Act). Learned Sr.

Counsel, Mr. G.N. Sahewalla placing reliance on a decision of the Apex Court in Thomson Press (India) Ltd. Vs. Nanak Builders reported in (2013) 5

SCC 397 submits that Section 52 of the T.P. Act does not invalidate the transfer itself. The effect of Section 52 is to subordinate the transfer

pendantelite without permission of the court, to the rights of the parties on the basis of decree of the suit. The doctrine of lis pendens engrafted in

Section 52 of the Transfer of Property Act, provides, that right of the parties to the transaction during pendency of the suit shall be subject to the

consequence of the decree.

The Apex Court in the case of Thomson Press (supra) observed as under:

“It is well settled that the doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the

decision of a court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of this Section

does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation.â€​

Therefore, the essence of the provision of Section 52 of T.P. Act is that a sale of theproperty or the transaction during pendency of the suit cannot

prejudice the interest of the parties to the suit, who is not a party to the transaction. The Apex Court in Nagubhai Ammal & Ors. Vs. B. Shama Rao

& Ors. reported in AIR 1956 SC 539 observed that the effect of Section 52 T.P. Act is not to wipe out a sale pendentelite altogether, but to

subordinate it to the rights based on the decree in the suit. As between the parties to the transaction, however, it was perfectly valid, and operates to

vest the title of the transferor in the transferee. Therefore, the underlying object of Section 52 of T.P. Act is to protect the right of the party to the

litigation and essence of the provision is that transaction entered into during pendency of the suit cannot prejudice the interest of the party to the suit

who is not a party to the transaction.

What therefore follows is that Section 52 of T.P. Act does not render the transactionduring pendency of the suit, invalid, and as such, a sale deed

executed during pendency of the suit cannot be held to be void. Only effect of such sale is that the right created by transaction shall be subject to the

consequence of decree of the suit. The substantial question No. 2 is answered accordingly.

The specific plea of the plaintiff was that the defendants No. 1 & 2 were tenants underthe proforma defendant and after purchasing the suit

property, the plaintiff asked the defendants to attorn the plaintiff as their landlord and the suit of the plaintiff for ejectment of the defendants No. 1 & 2

was on the basis of relationship of landlord and tenant. As per pleaded case of the plaintiff, other defendants were trespasser. Learned Munsiff while

deciding the issue relating to relationship of landlord and tenant between the plaintiff and defendants held, that the plaintiff failed to establish the

relationship of landlord and tenant between the defendant No. 1 & 2 and plaintiff. However, learned Munsiff took an erroneous view that in absence

of evidence to establish the relationship of landlord and tenant, such relationship shall be presumed if the plaintiff’s title is established and decreed

the suit of the plaintiff, for ejectment of the defendants with the following observation:

“Now in such cases where there is no sufficient materials to ascertain the tenancy relationship between the parties then the title of the plaintiff

becomes relevant and if his/her title is proved then tenancy relation between the parties is presumed.â€​

Learned Munsiff appears to have decreed the suit basically on the basis of title of theplaintiff, apparently ignoring the pleadings and evidence of

the parties. The defendants denied the title of the plaintiff over the suit land and the evidence adduced by the parties clearly demonstrated deficiency

in title of the plaintiff over the suit property, inasmuch as, evidently the vendor of the plaintiff was not the absolute owner of the suit property. There

were uncontroverted evidence on record adduced by the defendants No. 1 & 2 in support of their pleading that one Abdul Aziz was the original owner

of the suit property and plaintiff also admitted that defendant No. 1 was the daughter of Abdul Aziz. Be that as it may, clear finding of the learned

Munsiff was that there was no evidence to establish the relationship of landlord and tenant. Once the learned court came to the finding, that

relationship was not established, there could not be any presumption of relationship as to landlord and tenant, even if it is assumed for the sake of

argument that plaintiffs had title. Therefore the presumption of the relationship of landlord and tenant by the learned Munsiff, in view of the evidence

on record was palpably erroneous.

Learned appellate court also, in the impugned judgment came to the concurrent findingthat relationship of landlord and tenant between the parties

were not established. The learned first appellate court observed, that “But the evidence is nil in respect of attornment of tenancy with the plaintiff

after suit property had been purchased from the defendant by the plaintiff. As the tenancy in question is not proved, question of defaulter does not

arise. So the finding of the learned lower court on this aspect is not on the basis of evidence on record.â€​ Thus, both the appellate court and the trial

court were, in fact, of concurrent finding that the relationship of landlord and tenant between the parties was not proved.

Learned counsel Mr. S. Ali for the respondent placing reliance on a decision of the apexCourt in Rajendra Tiwary Vs. Basudeo Prasad & Anr.

reported in (2002) 1 SCC 90, contended that in a suit based on relationship of landlord and tenant, if the relationship is not established, court cannot

enter into the enquiry regarding title, to pass a decree and the suit has to be dismissed in absence of such relationship being the basis of the suit. The

Apex Court observed as under:

“7. It is evident that while dealing with the suit of the plaintiffs for eviction of the defendant from the suit premises under clauses (c) and (d) of

sub-section (1) of Section 11 of the Act, courts including the High Court were exercising jurisdiction under the Act which is a special enactment. The

sine qua non for granting the relief in the suit, under the Act, is that between the plaintiffs and the defendant the relationship of ‘landlord and

tenant’ should exist. The scope of the enquiry before the courts was limited to the question : as to whether the grounds for eviction of the

defendant have been made out under the Act. The question of title of the parties to the suit premises is not relevant having regard to the width of the

definition of the terms ‘landlord’ and ‘tenant’ in clauses (f) and (h), respectively, of Section 2 of the Act.

Inasmuch as both the trial court as well as the first appellate court found that the relationship of ‘landlord and tenant’ did not exist between

the plaintiffs and the defendant, further enquiry into the title of the parties, having regard to the nature of the suit and jurisdiction the court, was

unwarranted.â€​

As per pleaded case of the plaintiff, the defendants No. 1 & 2 were the tenants inrespect of two rooms of the kacha barrack type house and

proforma defendant was occupying four rooms in the said barrack type house. Admittedly, the defendants No. 1 & 2 vacated their rented rooms and

trespassed into the rooms, which were in occupation of the proforma defendant, inasmuch as, in paragraph-10 of the plaint it was clearly stated that

defendants No. 1 & 2 vacated the rooms under their occupation in favour of the defendant No. 3 and since then, the defendant No. 3 has been

residing in the said rooms. Meaning thereby, admittedly, the rooms, in respect of which the defendants No. 1 & 2 were alleged to have been tenant

under the proforma defendant, were vacated as back as on 08.09.1983 and they forcibly occupied the rooms which were under possession of the

proforma defendant and therefore admittedly the defendant No. 1 & 2 were not tenant in respect of the rooms alleged to have been occupied by them

since 1983.

PW-1 stated in his evidence that defendants No. 1 & 2 by breaking locks of RCC roomsinducted the defendants No. 6, 7 and 8 as tenants. PW-1

also stated in his evidence that defendants No. 1 & 2 illegally occupied four rooms which were in possession of proforma defendant. The plaintiff also

stated in evidence that after execution of sale deed the barrack type house was damaged, which was reconstructed by defendants No. 1 & 2. The

defendant No. 1 in his evidence stated that the suit property belonged to her father Abdul Aziz and she also proved the jamabandi of the suit land,

which was marked as Ext.19, showing that Abdul Aziz was the original owner of the suit land. This evidence, that Abdul Aziz was the owner of the

suit land remained uncontroverted. Though, initially the plaintiff denied the relationship of defendant No. 1 with Abdul Aziz and stated that proforma

defendant was the wife of Abdul Aziz, during cross examination, the PW-1 admitted that the proforma defendant was step mother of defendant No. 1

Rohima Bibi. Thus, the claim of the defendant No. 1 that she was the daughter of Abdul Aziz, the original owner of the suit properties was admitted

by the plaintiff. Thus, evidently, the suit property belonged to Abdul Aziz and defendant No. 1 Rohima Bibi was the daughter of Abdul Aziz. There

were also evidence on record that Abdul Aziz had also one son, whose name was Salam. The pleaded case of the defendants No. 1 & 2 was that the

defendant No. 1 being the daughter of Abdul Aziz being the owner of the suit land, she has been possessing the suit property as legal heir of her

father. Evidently, defendant No. 2 is the husband of defendant No. 1. The above evidence made it abundantly clear that the proforma defendant was

not the absolute owner of the suit property.

Learned counsel Mr. S. Ali submits that the suit was bad for non-joinder of necessaryparties and the suit was also not maintainable in absence of

prayer for declaration title. I find merit in the submission of Mr. Ali, inasmuch as, the evidence brought on record shows that the original owner of the

suit property was Abdul Aziz and the defendant No. 1 was legal heir of Abdul Aziz. It is also apparent that no evidence could be brought on record to

show that other defendants were tenant either under the proforma defendant or under the plaintiff. Admittedly, the defendants No. 3, 6, 7 & 8 were

inducted in the suit premises by defendants No. 1 & 2 as their tenant. It is also admitted position that the barrack type house was damaged and it was

reconstructed by defendants No. 1 & 2 and they also made other construction. In view of the above clear evidence, there was no scope for decreeing

the suit of the plaintiff for ejectment on the basis of title in absence of any declaration of title or in absence of proof of title, more particularly, when

the relationship of landlord and tenant was not established. The plaint in the instant case appears to have been very cleverly drafted, perhaps, to

obviate the difficulties or necessities of proving the title and relationship of landlord and tenant. Be that as it may, when the suit was based on landlord

tenant relationship, the question of title could not be gone into, once the relationship was found not established.

In order to prove the relationship of tenancy, plaintiff proved Ext.5 a purportedagreement between proforma defendant and defendant No. 2.

Though Ext.5 was admitted in evidence and marked as exhibit, the contents and execution of the same was never duly proved, reason being that

defendant No. 2 denied the Ext.5. Proforma defendant or any one acquainted with the Ext.5 was not examined to prove the execution and contents of

Ext.5. Admittedly the PW-1 who tendered the Ext.5 in evidence had no personal knowledge about the execution of Ext.5. It is trite law, that mere

marking of a document as exhibit is not sufficient to prove the execution and contents thereof, which are to be proved independently, more particularly

when contents or execution are denied. Moreover, the defendant No. 1 was admittedly not a party to the Ext.5. Admittedly all other defendants were

trespasser according to plaintiff. However, both the court below having considered the Ext.5 came to the finding that relationship of landlord and

tenant was not established, and such finding on the basis of evidence appears to be correct and cannot be faulted. This apart, obviously the question of

relationship of landlord and tenant between the parties is a question of fact, and as such, the concurrent findings of both the trial court as well as the

appellate court that there was no relationship of landlord and tenant between the parties is also not amenable to challenge in second appeal. The

substantial question No. III is accordingly answered.

The appellant filed an application under Order 41 Rule 27 CPC seeking leave to adduceadditional evidence being the order dated 10.03.2003

passed in T.S. No. 51/1983 and record of T.S. No. 111/1983. Learned Sr. Counsel, Mr. G.N. Sahewalla placing reliance on the following decisions

contended that for proper adjudication of this second appeal, such evidence are required to be adduced.

(2007) 14 SCC 257 (K.R. Mohan Reddy Vs. Network INC)

(2008) 8 SCC 511 Â (North Eastern railway Administration, Gorakhpur Vs. Bhagwan Das)

(2010) 13 SCC 487 (Malayalam Plantations Ltd. Vs. State of Kerala & Anr.)

As per provision of Order 41 Rule 27 CrPC, additional evidence at the appellate stagecan be admitted only under the three contingencies laid

down in Clause (a), (a a) and (b) of Rule 27 (1). From the petition filed by the appellant, it appears that permission for adducing additional evidence is

sought for under clause-(b) and as such, clause (a) and (aa) are not attracted in the instant case. The clause (b) lays down that if the court requires

any additional evidence to enable it to pronounce judgment or for any other substantial cause, additional evidence can be admitted. The ‘any other

substantial cause’ also relates to the term ‘requirement’ which must be of the court and not of any party. Therefore, if the court is in a

position to pronounce judgment on the basis of the evidence and materials available on record, without taking into consideration the additional evidence

sought to be adduced, there is no question of admitting additional evidence, oral or documentary, which is otherwise also an exception to the general

rule that parties to an appeal shall not be entitled to adduce additional evidence.

The additional documentary evidence sought to be adduced by the appellant are theorder passed in a previous suit (TS No. 51/1983), whereby the

suit filed by the respondent No. 1 was dismissed for default and the record of another previous suit (T.S. No. 111/1983). The present second appeal

arose out of the suit filed by the plaintiff appellant for ejectment of the defendant. In the adjudication of the suit and the appeal arising therefrom, the

order passed in the suit filed by the respondent which is stated to have been dismissed for default does not have any bearing, except for the issue

relating to the plea of res-judicata raised in the suit.

The evidence and pleadings were clear to show that both the suits filed by the respondent i.e. T.S. 15/1983 and T.S. 111/1983 were pending when the

present suit was decided and therefore, for adjudication of the issue of res-judicata, additional evidence sought to be adduced is not at all required.

This court has already decided in the substantial question of law No. 1, that in view of both the previous suits being pending, Section 11 of the CPC

was not attracted and in that view of the matter, the document sought to be brought on record as additional evidence does not appear to be necessary

for proper adjudication of the present appeal and as such the prayer of the appellant to adduce additional evidence in the instant case deserves to be

rejected. Since there is no dispute at the bar with regard to the proposition of law and ratio laid down in the decision of K.R. Mohan Reddy Vs.

Network (supra) and Malayalam Plantation Ltd. Vs. State of Kerala (supra) relied by learned Sr. Counsel Mr. Sahewalla, I feel it unnecessary to

burden the judgment by quoting these decisions.

Another contention raised by Mr. Sahewalla was that the judgment of the first appellatecourt was not in terms of Order 41 Rule 31 CPC and for

that ground also the appellate judgment is required to be set aside. There is no dispute that the first appellate court must adhere to the provision of

Order 41 Rule 31, which deals with the contents of appellate judgment. Order 41 Rule 31 lays down, that judgment of the appellate court shall be in

writing and shall state â€" (a) the points for determination; (b) decision thereon; (c) the reasons for the decision; and (d) where the decree appealed

from is reversed or varied, the relief to which the appellant is entitled. On perusal of the judgment, it is difficult to say that the learned appellate court

did not comply with the provision of Rule 31 of Order 41. The basic issues involved in the suit were apparently dealt with by the learned appellate

court as its points for determination. Learned court also discussed both facts and law relating to the issue. Therefore, the appellate judgment in the

instant case cannot be held to be totally in violation of Order 41 Rule 31 CPC justifying remand of the suit for a fresh decision after more than a

decade.

The suit being basically for ejectment on the ground of landlord and tenant relationshipand such relationship having not been established, as

concurrently held by both the courts below, the plaintiff could not be entitled to a decree in the instant suit. Otherwise also, even if it is assumed to be

a regular suit, then also the suit was apparently bad in absence of any declaration of title, inasmuch as, the title of the plaintiff was disputed and

evidence brought on record also demonstrated that the plaintiff could not establish his exclusive title because of deficiency in the title of his vendor

(proforma defendant) and apparently the suit was also bad for non-joinder of necessary party being other legal heirs of the original owner. Be that as

it may, since the suit was for ejectment on the basis of landlord and tenant relationship, which was not established, there was no need for going into

the question of title and as such, no decree could be passed in favour of the plaintiff.

In view of the forgoing discussion, the impugned judgment dismissing the suit of theplaintiff calls for no interference by this court. Accordingly, the

appeal is dismissed and the impugned judgment and decree passed by the learned first appellate court is upheld.

Send down the LCR.