LODHA, J.—This is a defendants second appeal arising out of a suit for possession of a room and mesne profits for the same. It arises under the following circumstances:

The plaintiff respondent Smt. Prit Bai purchased in auction held by the Regional Settlement Commissioner. Rajasthan, Jaipur on 12tb January, 1957, property bearing No.AMC.VI1/884 XIV/164 (old number) corresponding to AMC No XXII/89 (new number) situated at Nawab-Ka-Bera Ajmer. The sale certificate in respect of this property was granted to the appellant by the Managing Officer, Ajmer on 20-6-1962, copy of which has been placed on the record, and marked Ex. 7A. The plaintiff alleged in the plaint held on 21-6-1965 that on or about 1-6-1962 the defendant-appellant Mannumal forcibly occupied the room situated in the south of the property purchased by the plaintiff. The plaintiff, therefore, prayed that a decree for possession of the room in dispute may be granted in her favour and she may also be awarded Rs. 173/- as damages for use and occupation upto the date of the suit and also future mesne profits at the rate of Rs. 5/- per month till the date of delivery of possession of the room to her.

2. The defendant denied the plaintiffs claim to the room in question an pleaded that he had been in continuance possession of the same since 1-1-1948 as owner and the same formed part of his own house. He also pleaded that the plaintiffs suit is barred by limitation as she had not been in possession of the room in question within 12 years before the date of the suit.

3. After recording the evidence produced by the parties the learned Munsiff, Ajmer City (West), Ajmer decreed the plaintiffs suit for possession of the room in question and also directed that the defendant shall pay damages for use and occupation at Rs. 5/- per month from 1-6-1962 till the date of handing over possession of the room to the plaintiff.

4. Aggrieved by the judgment and decree of the trial court the defendant filed appeal in the court of District Judge, Ajmer which was transferred to the Court of Civil Judge, Ajmer who by his judgment and decree dated 31-7-1968 affirmed the judgment and decree of the trial court and dismissed the defendants appeal. Consequently the defendant has come in second appeal to this court.

5. Learned counsel for the appellant has urged in the first instance that the judgment of the lower appellate court is not in accordance with law inasmuch as the documents on the basis of which the judgment has been given in favour of the plaintiff have not been discussed nor their contents and effect carefully examined. He has also urged that since the plaintiff was out of possession of the room in question and the defendant was in possession of the same, the burden of proof squarely lay on the plaintiff to prove that the defendant who was in possession of the room in dispute was not its owner. But the lower appellate court, it has been argued, has dealt with the case as if the burden of proof in the case lay on the defendant. It is contended that the findings arrived at by the lower court are vitiated on account of this erroneous approach by the lower court. It has also been vehemently contended that the plaintiff has not proved the documents relied upon by him and the line plans on which the lower courts have based their judgments are inadmissible in evidence and no presumption of correctness can be drawn in respect of them. Learned counsel also argued that the plaintiff had come forward with a definite case that she had been forcibly dispossessed from the room in question by the defendant on 1-6-1962, but altogether a different case has been made out by the plaintiff in the course of evidence inasmuch as the plaintiffs case as disclosed in the evidence produced by her is that the defendant gave pagdi (premium) to the plaintiffs alleged tenant and thereby managed to enter into the house. It is argued that there is a clear variance between the pleading and the proof, and the lower courts sho

Click Here to Read the rest of this document