Krishna Narayan And Others vs Jagdish And Another

Heard on admission .

The appellants/plaintiffs have filed the present appeal being aggrieved by the judgement and decree dated 05.02.2016 passed by the 2nd Civil Judge, Class-II, Mandsaur and judgement dated 05.03.2019 passed by the 1st Additional District Judge, Mandsaur whereby civil suit as well as first appeal both has been dismissed.

Facts of the case, in short, are as under:

The plaintiffs filed the suit for eviction, arrears of rent and damages against the defendant No.1 and 2. According to the plaintiffss, their father Late.Babulal (expired on 09.03.2002) was owner of the land bearing Survey No.825 (area 35x70 sq.ft.), Kailash Marg, and Mandsaur (hereinafter referred as "suit property"). The boundaries of the suit property is mentioned in para 1 of the plaint and the affidavit filed alongwith the plaint. According to the plaintiffs, Late Babulal during his lifetime gave the suit property to the defendant No.1 on rent vide Exhibit P/1 dated 01.06.1990.The rent was Rs.101/- per month and it was given for the period of one year. The tenancy continued and the defendant No.1 paid the rent upto 31.03.2007 and thereafter he stopped paying, therefore, the plaintiffs gave him a legal notice dated 25.08.2008 which he refused to accept. The defendant No.1 has removed his possession over the suit property and has given it to the defendant No.2 on 13.08.2008 without the permission of plaintiffs. The defendant No.2 had filed the suit for eviction for defendant No.1 i.e. C.S.No.487-A/2004. In the said suit the defendant No.1 filed the written statement stating that he is a tenant of Babulal but later on compromise was arrived between them and on 13.08.2008 the defendant No.1 has handed over possession of the suit property to defendant No.2 and she has got the suit dismissed on 10.09.2008, therefore, the cause of action has accrued in favour of plaintiffs to file the suit against defendant No.1 and 2 both claiming eviction possession and arrears of rent.

After receipt of the summon, the defendant No.1 remained ex-parte. The defendant No.2 filed the written statement by submitting that the defendant No.1 was a tenant of Babulal over the land measuring 50x60 sq.ft of Survey No.825 and thereafter she has purchased the land from Babulal vide registered sale deed dated 03.03.1983 and obtained the possession from defendant No.1 by filing suit. The plaintiffs filed the Civil Suit No.16-A/2001 challenging the sale deed dated 03.03.1983 and the suit had been dismissed on 18.10.2002, therefore, the present suit suffers from res-judicata and liable to be dismissed with cost.

Both the parties examined their witnesses and got exhibited the documents. Vide judgement dated 05.02.2016 the learned Civil Judge, Class-II has dismissed the suit on the ground that the plaintiffs has failed to prove the precise location of suit property .That in Exhibit P/1 the boundaries of the suit property are not mentioned, therefore, the plaintiffs has failed to prove that the defendant No.1 was and now defendant no.2 is in possession as tenant in the suit property, hence he is not entitled for decree of eviction and rent.

Being aggrieved by the aforesaid judgement and decree, the plaintiffs filed the first appeal. Vide judgement dated 05.03.2019, the learned Additional District Judge has dismissed the first appeal. Hence, the present second appeal before this Court.

I have heard Shri Brajesh Kumar Pandya, learned counsel for the appellant, and perused the record.

That the plaintiffs filed the suit against the defendants seeking eviction and arrears of land measuring 35 x 70 sq.ft. Though the area of the suit property has been mentioned but the survey number has not been mentioned in the plaint. Even in Exhibit P/1 also the survey number and boundaries both are not mentioned in it. In legal notice dated 25.08.2008 also the plaintiffs did not mention the survey number of the suit property. From the boundaries mentioned in the plaint and the notice, the location of the suit property is not clear. According to the plaintiffs, the defendant No.1 has handed over the possession of the suit land to the defendant no.2 during pendency of C.S.No.487-A/2004. In the said suit the present plaintiffs filed an application for intervention but the compromise was arrived between defendant Nos.1 and 2 and the suit was dismissed. The plaintiffs did not take any step to oppose the withdrawal of the plaint and did not challenge the compromise decree .

The defendant No.2 came up with the plea that she purchased the land area 50 x 60 sq.ft.of Survey No.825 from late. Babulal vide registered sale deed dated 03.03.1983 and at that time the defendant No.1 was in possession. The plaintiffs filed the Civil Suit No.16-A/2001 challenging the said sale deed, but the said suit has been dismissed. The name of defendant No.2 has been mutated in the revenue record, which was also challenged by the plaintiffs upto the board of revenue and they lost, therefore, the defendant No.1 was a tenant in the land Survey No.825 (50x60) which had been purchased by defendant No.2 and obtained the possession from the defendant No.1 by way of compromise. The plaintiffs have impleaded the defendant No.2 in this suit knowingly that the same land which was in possession of defendant No.1 i.e. Survey No.825 (50x60) had been sold to defendant No.2 by late Babulal, therefore, the present suit is nothing but a sheer misuse of process of law and harassment to defendant No.2. The plaintiffs have challenged the mutation proceedings upto the Board of Revenue. Thereafter, the suit was filed challenging the sale deed of defendant no.2 and that has also been dismissed. Thereafter, they tried to intervene the eviction suit filed by the defendant no.2 against defendant No.1. The present suit has been filed only on the basis of Exhibit P/1 in which the Survey number, boundaries are not mentioned. Only the area 35 x 70 is mentioned. The defendant No.1 did not enter into the witness box. Hence, both the Courts below have rightly dismissed the suit as well as first appeal. They ought to have dismissed the suit with cost.

Present appeal is dismissed with the cost of Rs.10,000/- payable to the defendant no.2.