Rajasthan High Court - Jodhpur
F/M Dhanraj Dev Kishan & Anr vs Sriniwas on 25 November, 2010
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
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(S.B. Civil First Appeal No.192/2010)
DATE OF ORDER : November 25th, 2010
PRESENT
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
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Mr. Sajjan Singh/Mr. J.K. Bhaiya for the appellants.
Mr. Arun Bhansali for the respondent(s).
BY THE COURT :
Heard.
Admit. Issue notice.
Notice need not be issued. Tag this appeal with S.B. Civil First Appeals No.206/2010, No.197/2010 and No.240/2010.
Heard learned counsel for the parties on the stay application filed by the appellants.
It is submitted by learned counsel for the appellants that the property in question was initially belonging to one Jamnadas Bhadani and, after his death, his son Omkar Dutt became owner of the property of late Jamnadas situated in village Nokha Mandi. As per appellants, the appellants were enjoying the premises being shop and nohara No.34 as tenants. Original patta was in the name of Jamnadas but, after his death, his son Omkar Dutt became the owner of the property.
As per the appellants, Omkar Dutt had two sons namely, Durgadutt and Gyan Prakash. Durga Dutt was born of his 2 wedded wife and Gyan Prakash was not born of his wedded wife. Durga Dutt executed a sale-deed of the suit premises in favour of one Hanuman Bux for a term of 99 years with automatic renewal for another 99 years. For the said deed a lump sum of Rs.15,500/- was paid and said lease-deed was irrevocable.
Plaintiff-respondent Sriniwas preferred a suit on the basis of sale-deed executed in favour of him and Smt. Veera Devi by Gyan Prakash on 02.09.1988. Respondent Sriniwas and Smt. Veera Devi filed a suit on the basis of said sale-deed being landlord and said suit was registered as Civil Suit No.120/1991 against firm Dhanraj Devkishan and Devkishan, present appellants. In the said suit, a plea was taken by the present appellants that they are not in possession of the premises because in pursuance of the sale-deed executed by Durga Dutt in favour Hanuman Bux, a suit was filed by Hanuman Bux against the appellant firm Dhanraj Devkishan for eviction and in that suit a compromise decree was passed and, in pursuance of the said compromise decree dated 02.06.1994, possession of the said premises was delivered by the present appellants in favour of Hanuman Bux. Thereafter, Hanuman Bux being the lease- holder, rented out the said premises to Om Prakash - son of Dev Kishan and Smt. Sanju Devi, daughter-in-law of Dev Kishan while executing a kabuliatnama in favour of Hanuman Bux and, now, they are in possession of the premises; but, ignoring all 3 these facts, learned trial Court has granted decree of eviction against the appellants while holding that the appellants are still in possession, therefore, effect and operation of judgment and decree dated 26.03.2010 may be stayed because appellants are not in possession of the suit premises.
Per contra, learned counsel for the respondent submits that the arguments advanced by the appellants are totally untenable and contrary to the evidence on record. In fact, appellant Dev Kishan is fountain-head of the entire proceedings for the reason that somehow he wants to maintain his possession of the premises in question. Admittedly, as per facts of the case, patta of the premises in question was in the name of Jamnadas Bhadani and, after his death, Omkar Dutt became owner of the proper and Omkar Dutt and his son Durga Dutt executed a trust-deed and settled the property in favour of Gyan Prakash, son of Om Prakash, from whom the plaintiff Sriniwas purchased the property through registered sale-deed (Annex.-3) on 02.09.1986. Thereafter, they became landlord of the premises in question and, after purchasing the said property, plaintiff-respondent Sriniwas and Smt. Veera Devi filed suit for eviction and said suit was registered as Civil Original Suit No.120/1991, in which, provisional rent was determined by the trial Court on 30.01.1993; and, thereafter, said order was challenged by way of filing S.B. Civil Misc. Appeal No.139/1993 4 and said appeal was dismissed but rent determined by the Court was not deposited, therefore, defence was struck off. Against said order of striking off defence, appeal was preferred, that, too, was dismissed by the appellate Court.
Learned counsel for the plaintiff-respondent invited attention of this Court towards very important fact that during pendency of that suit for eviction filed by plaintiff-respondent Sriniwas, a collusive decree was obtained in the suit filed by one Hanuman Bux on 02.06.1994 on the basis of compromise by which it is alleged that suit premises of this case was handed over to Hanuman Bux on 14.09.1994; and, thereafter, Hanuman Bux rented out the said premises to Om Prakash, son of Dev Kishan and Smt. Sanju Devi. During pendency of the said suit, when the fact was disclosed by the appellants in the suit that as per compromise decree dated 02.06.1994, suit premises has been given on rent to one Om Prakash, son of Devi Kishan and Sanju Devi, then, another suit was filed by plaintiff Sriniwas and Smt. Veera Devi on 17.09.1996, in which, collusive decree dated 02.06.1994, so also, lease-deed dated 09.10.1985 were challenged. In the said suit, Addl. District & Sessions Judge (Fast Track) No.3, Bikaner set aside the collusive decree dated 02.06.1994 and, so also, lease-deed dated 09.10.1985. Therefore, in this case, the learned trial Court held that possession is still left with the defendants.
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Further, it is pointed out that Hanuman Bux himself filed an affidavit in the Court in the year 2007 stating therein that lease- deed dated 09.10.1985 was fraudulently got executed by Dev Kishan when he was munim in the shop of Dev Kishan. Further, it is also stated that Dev Kishan also obtained decree dated 02.06.1994 fraudulently; but, in fact, the premises are still in his possession.
Learned counsel for the respondent invited attention of this Court to the fact that as many as six different writ, revision and miscellaneous appeals were filed before this Court during the pendency of the suit by the appellants, whereby, different orders of determination of rent, striking off defence were challenged. It is also pointed out that in S.B. Civil Misc. Appeal No.234/2007, it is specifically stated by the appellants M/s Dhanraj Devkishan that possession of the disputed property lies with the appellants. Therefore, learned trial Court while taking the view that the appellants are still in possession of the property passed decree of eviction. As such it is prayed that appellants are not entitled for any stay upon execution of the decree in this appeal.
After hearing both the parties and taking into consideration entire facts on record, prima facie, I am of the opinion that conduct of the appellants disentitles them to get any stay upon execution in respect of the suit premises. If their case is that they are not in possession, then, obviously they are not required 6 to file any stay application and, if their case is that they are in possession, then, their plea is false before the Court. Filing of the stay application shows that somehow they want to defeat the relief granted by the trial Court in favour of the plaintiff- respondent, for which, he is litigating since 1991.
In view of the aforesaid, the stay application is rejected.
(Gopal Krishan Vyas) J.
Ojha, a.