Shiv Narayan vs Ayodhya Devi

Vineet Kothari, J.—The appellant/defendant, Shiv Narayan S/o. Sh. Bheru Singh, has filed present second appeal under Section 100 of CPC, 1908, being aggrieved by the concurrent decree of possession and mesne profit against them in respect of suit property situated at Kabootaron-ka-Chowk, Jodhpur.

The respondent/plaintiff, Smt. Ayodhya Devi W/o. Sh. Kishtoorchand Bhati, purchased the suit property "Nohra" from Smt. Chandra Gupta by way of a registered sale-deed dated 20.11.1979 for a sum of Rs. 25,000/-. In the said suit premises, one room was earlier let-out to the defendant, Shiv Narayan (who is now represented through his legal representatives) at a monthly rent of Rs. 5/- by Smt. Chandra Gupta. The respondent/plaintiff, Smt. Ayodhya Devi, filed the suit seeking eviction and dispossession of the defendant from the suit property described in the suit, which according to plaintiff was in excess possession beyond one room, which was in his tenancy from the original owner, Smt. Chandra Gupta; and according to plaintiff, the defendant had encroached upon said described excess portion of the property in question and had no right to remain in the possession of the same.

The trial court decreed the suit (Civil Suit No. 221/1983 - Smt. Ayodhya Devi Vs. Shiv Narayan) on 18.08.1992. The operative and relevant portion of the said judgment and decree is quoted herein below for ready reference:-

The first appeal filed by the appellant/defendant, Shiv Narayan S/o. Bheru Singh being Civil Appeal No. 13/1992-Shivnararyan Vs. Smt. Ayodhya Devi, was also dismissed by the lower appellate court of Additional District Judge No. 1, Jodhpur, on 23.02.1993 and the relevant findings of the appellate court as contained in para 10 of the judgment and decree are quoted herein below for ready reference:-

Being aggrieved by the same, the appellant/defendant has filed the present second appeal, in which following substantial question of law was framed by a coordinate bench of this Court on 25.08.1993 while admitting the present second appeal:

"Whether the finding of the learned trial court that the appellant was not a tenant in the premises in dispute is not perverse?" 6. Mr. M.C. Bhoot, Sr. Advocate assisted by Mr. Arpit Bhoot, learned counsel for the appellant/defendant argued that the learned courts below have erred in decreeing the suit in favour of respondent/plaintiff, since in the sale-deed executed by Smt. Chandra Gupta in favour of plaintiff, Smt. Ayodhya Devi, there was no stipulation made in the sale-deed that the defendant, Shivnararyan had encroached over the specified portion and on the contrary she had stipulated that the property was possessed by various tenants at the time of said sale; and therefore, the decree against the defendant treating him as encorahcee cannot be sustained and he was tenant in the said specified portion also. He, therefore, submitted that there is misreading of the evidence in the present case and the substantial question of law framed in the present appeal, deserves to be answered in favour of appellant/defendant.

On the contrary, Mr. B.K. Thanvi, learned counsel for the respondent/plaintiff (decree holder) vehemently opposed these submissions and drew the attention of the Court towards clear stipulation made in the sale-deed itself that the defendant, Shivnarayan was in possession of only one room in the entire property purchased by Smt. Ayodhya Devi and no other portion was in possession of the defendant as stated. He also drew the attention of the Court towards Exhibit-5 and the statement of one Ganpat Singh, who was earlier occupying the said disputed portion of the property as tenant and had handed over the vacant possession of the said portion to the landlady, Smt. Chandra Gupta, on 15.02.1973 vide Exhibit-5, but later on the defendant, Shivnarayan, had forcibly possessed the said disputed portion. Mr. B.K. Thanvi, therefore, urged that concurrent decree of possession in favour of respondent/plaintiff deserves to be upheld and though no substantial question of law arises in the presents as findings of facts are binding on this Court and the substantial question of law framed by this Court, therefore, deserves to be answered in favour of the respondent/plaintiff.

I have heard the learned counsel for the parties at length and perused the record and so also judgments and decree of both the courts below. The relevant portion of the sale-deed executed in favour of respondent/plaintiff is quoted herein below for ready reference:-

The aforesaid portion of the sale-deed, coupled with the findings of the learned courts below quoted above, along with statement of Ganpat Singh, clearly goes to show that that the disputed portion of the property was never in the possession of the appellant/defendant as tenant but only one room was let out to him at the monthly rent of Rs. 5/- and the disputed portion of the suit property is other than that one room. Learned counsel for the respondent/plaintiff also informed that the Court that for eviction of even that one room, separate eviction proceedings are pending under the old Rent Control Act, 1950, against the defendants. Be that as it may, though it was not at all even necessary to make any stipulation with regard to encroachment made by the defendant in the sale-deed executed in favour of plaintiff, Smt. Ayodhya Devi yet an endorsement has been made in the aforesaid sale-deed to dispel any doubt by way of sale and to repel the contention raised by the learned counsel for the appellant/defendant, Mr. M.C. Bhoot, and therefore, the decree of possession granted in favour of respondent/plaintiff is based on relevant evidence and such findings of facts are binding on this Court as well. The substantial question of law framed above, therefore, deserves to be answered in favour of respondent/plaintiff and it is so answered accordingly in favour of plaintiff. The decree of possession granted by the two courts below is upheld.

Resultantly, the present second appeal filed by the appellant/defendant is dismissed with costs of Rs. 5000/-. The appellants/defendants shall handover the peaceful and vacant possession of the suit premises to the respondent/plaintiff within a period of three months from today, and if necessary, with police aid which may also be provided. The appellants/defendants shall also pay mesne profit @ Rs. 500/- per month from the date of filing of the suit viz. 20.08.1980 till the date of actual handing over of the possession for the use and occupation of the suit premises. The respondent/plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court, in case the appellants/defendants fail to handover the peaceful and vacant possession of the suit premises within a period of two months from today. A copy of this judgment be sent to the concerned parties forthwith.