Hon’ble Pramod Kumar Srivastava, J.—S.C.C. Suit No. 37 of 2005, Gopal v. Vinod was filed for recovery of arrears of rent and ejectment by plaintiff-landlord against defendant-tenant. In said case, written-statement was filed by defendant claiming to be the co-owner of disputed house because of of the Benami transaction of purchase of this house by his father in the name of his elder brother (plaintiff Gopal). Since defendant had denied his tenancy and claimed to be the co-owner of disputed house, therefore, on the basis of dispute being raised on rights and title of plaintiff, the plaint was returned in Civil Court, where it was registered as original suit No. 253 of 2007, Gopal Ji v. Vinod Kumar Gupta, in Court of Civil Judge (Senior Division), Gorakhpur.

2. In the trial Court, plaint case was the same as it was in earlier Court of JSCC, as plaintiff claimed himself to be the owner and landlord of the house in question in which the defendant (present appellant) was his tenant, and after termination of tenancy as the status of defendant was that of trespasser; so plaintiff has sought relief of recovery of arrears of rent and ejectment of the defendant from disputed house. In original suit, defendant filed written statement reiterating his earlier stand. He pleaded that disputed property was purchased by Ratan Lal Gupta, the father of parties, for joint Hindu family as Benami in the name of his brother Gopal Ji (plaintiff); then after the death of their parent, parties and their other brothers became co-owners of disputed house. Defendant further pleaded that his possession in this house is that of co-owner and not as tenant, therefore, suit should be dismissed.

3. The trial Court had framed issues, accepted the adduced evidences and thereafter the Court of Additional Civil Judge (Senior Division), Court No. 2, Gorakhpur had passed the judgment dated 19.2.2015, by which suit was partly decreed for eviction of defendant and handing over possession of disputed property to plaintiff. In this judgment, trial Court had given finding to the effect that plaintiff had failed to prove that his relation with defendant was that of landlord and tenant; but the plaintiff is the sole owner of disputed property, and the defendant had failed to prove his pleading of co-ownership. Therefore, plaintiff’s suit is partly decreed only for the eviction of defendant and for recovery of possession from him to plaintiff.

4. Against the judgment of trial Court, Civil Appeal No. 42/2015, Vinod Kumar Gupta v. Gopal Ji, was preferred by defendant of the original suit. This appeal was heard and dismissed by the judgment dated 10.8.2015 of the District Judge, Gorakhpur, who had confirmed the findings and judgment of trial Court. In this judgment, first appellate Court had also held that the relationship of landlord and tenant between the plaintiff and defendant is not proved, but it is proved that plaintiff is the owner of disputed house and defendant is residing in this house in unauthorized way, therefore, he should be evicted. Aggrieved by these judgments of trial Court and the first appellate Court, present second appeal has been preferred by the defendant of original suit.

5. Learned counsel for the appellant contended that findings of the two Courts below are perverse because the trial Court as well as the first appellate Court had not considered the right of coparcenery of defendant-appellant. He also contended that both the Courts below had not considered the long and uninterrupted adverse possession of appellant, on the basis of which original suit should have been dismissed. The main contention of learned counsel for the appellant was that in that plaint case of plaintiff’s land-lordship and defendant’s tenancy as well as termination of tenancy could not be proved. Therefore, when plaint case could not be proved, then original suit should have been dismissed and civil appeal should have been allowed. He contended that for these reasons, app