Kalindri Bai vs Bagwati Prasad Dhruw

Second Appeal No.296/2012 preferred by the appellant/plaintiff was admitted for hearing on 29.6.2021 by formulating the following substantial

question of law:Â​

“Whether the First Appellate Court is justified in granting decree of Rs.1,15,000/ along with interest in favour of defendant without any counter

claim filed on behalf of defendant by recording a finding perverse to the record ?â€​

Second Appeal No.424/2012 preferred by the appellant/defendant was admitted for hearing on 8.11.2012 by formulating the following two

substantial questions of law:Â​

“1. Whether the lower appellate Court was justified in granting money decree of Rs.1,15,000/ along with interest at the prevailing bank rate

without any claim of relief ?

Whether the lower appellate Court was justified in passing the decree of entitlement of monthly rent of Rs.300/Â​ in absence of such claim ?â€​

[For the sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court].

PlaintiffÂSmt.Kalindri Bai filed a suit for decree of possession stating interÂalia that the suit house which she was gifted to her by her father by

registered gift deed dated 17.5.80 in which she is titleÂholder and it was leased out to the defendant on monthly rent of Rs. 750/Â commencing on 1st

day of English calender month and ending of that calender month. It was further pleaded that the plaintiff has taken a loan of Rs. 50,000/Â from the

defendant to be adjusted in rent, when the plaintiff decided to refund the amount, the defendant denied and insisted for execution of sale deed in his

favour resulting into filing of the suit after termination of tenancy by notice dated 26.3.2003 claiming decree for eviction / possession from the

defendant.

Resisting the suit, the defendant filed his written statement and denied the averments made in the plaint stating interÂalia that he has already

purchased the suit house on 7.3.2000 on consideration of Rs. 90,000/Â and the plaintiff taken Rs. 22,000/Â as advance and possession has been

handed over to him and Rs. 28,000/Â has been paid on 11.6.2000 and remaining amount has also been paid on installments, but sale deed has not been

executed in his favour. He has also incurred Rs. 25,000/Â​ in maintenance of the suit house, as such, the suit deserves to be dismissed.

The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment and decree dated 12.8.2008, dismissed the

suit holding that relationship of landlord and tenant between plaintiff and defendant is not established and the defendant has purchased the suit house

from the plaintiff on payment of Rs. 90,000/Â and the plaintiff is not entitled for decree of eviction. On appeal being preferred by the plaintiff, the first

appellate Court by the impugned judgment and decree held that though the plaintiff is titleÂholder of the suit house and entitled for decree of eviction,

but directed that Rs. 1,15,000/Â be refunded to the defendant as Rs. 90,000/Â towards the amount paid to her and Rs. 25,000/Â which he has

incurred in maintenance of the suit house, against which, the plaintiff has preferred Second Appeal No.296/2012 and the defendant has preferred

Second Appeal No.424/2012 against order granting decree of rent from 1st July, 2002 to the date of payment.

Since both the appeals are arising out of the common judgment and decree, both were clubbed together, heard together and being disposed of by

this judgment.

Mr.B.M.Rao, learned counsel for the appellant/plaintiff in Second Appeal No.296/2012, would submit that since there is no counterÂclaim of Rs.

1,15,000/Â made by the defendant in his written statement, no decree of Rs. 1,15,000/Â could have been passed against the plaintiff and in favour of

the defendant, therefore, that part of decree deserves to be setÂaside, which is opposed by Mr.A.P.Sharma, learned counsel for the defendant stating

interÂalia that the defendant has paid Rs. 90,000/Â to the plaintiff and Rs. 25,000/Â was incurred in maintenance of the suit house, as such, it has

rightly been passed.

Mr.A.P.Sharma, learned counsel for the appellant/defendant in Second Appeal No.424/2012, would submit that decree for rent has not been

claimed by the plaintiff, yet the first appellate Court granted w.e.f. 1st July, 2002, which is liable to be setÂaside, which is opposed by Mr.B.M.Rao,

learned counsel for the plaintiff.

I have heard learned counsel appearing for the parties, considered their submissions made hereinabove and also went through the records with

utmost circumspection.

The suit for eviction based on landlord relationship has been dismissed by the trial Court, but the first appellate Court granted holding the plaintiff to

be titleÂholder and granted decree for possession of the suit house. On the said part of decree, no question of law has been proposed or framed in

second appeal preferred by the defendant, as such, no lis is required to be adjudicated on the decree for possession granted in favour of the plaintiff.

Now, there is decree for payment of Rs. 90,000/Â​ and Rs. 25,000/Â​ total Rs. 1,15,000/Â​ along with interest in favour of the defendant and against

the plaintiff.

It is not in dispute that the defendant did not lay any counterÂclaim claiming an amount of Rs. 1,15,000/Â along with interest from the plaintiff.

Definitely, such a claim was not put to trial giving notice to the plaintiff. Therefore, in absence of counterÂclaim or counterÂsuit by the defendant

claiming an amount of Rs. 1,15,000/Â, no money decree to the extent of Rs. 1,15,000/Â could have been passed by the first appellate Court, which is

accordingly setÂ​ aside.

Now, coming to Second Appeal No.424/2012 preferred by the defendant.

It is true that the plaintiff did not claim any rent w.e.f. 1st July, 2002 from the defendant, yet again the first appellate Court has granted decree of

rent from 1st July, 2002 to the date of payment, which has not been claimed in the plaint, as such, decree for payment of rent from 1st July, 2002 as

held by the first appellate Court is hereby setÂ​aside.

In that view of the matter, decree of the first appellate Court directing payment of Rs. 1,15,000/Â along with interest by the plaintiff to the

defendant is hereby setÂaside. Similarly, decree for payment of rent of Rs. 300/Â per month from 1st July, 2002 by the defendant to the plaintiff is

also hereby setÂ​aside. Consequently, only part of decree for possession is maintained and other part of money decree is hereby setÂ​aside.

Both the appeals are partly allowed to the extent indicated hereinabove leaving the parties to bear their own cost(s).

Appellate decree be drawnÂ​up accordingly.