JUDGMENT

This second appeal has been preferred by the appellants/plaintiffs challenging the judgment and decree dated 02.11.2000 passed by Additional District Judge, Sohagpur to the court of District Judge, Hoshangabad in Civil Appeal No.3-A/1999 whereby reversing the findings on issue no.1,2,4&6 recorded in judgment and decree dated 23.12.1998 passed by Civil Judge Class-

I, Pipariya, Camp Pachmadhi in Civil Suit No.3-A/97.

2. descendants are the appellants) instituted a suit for eviction and recovery of arrears of rent on the grounds available under Section 12(1)(a)(e)&(g) of the M.P. Accommodation Control Act, 1961 (in short ‘the Act’) on the allegations that the original owner of the suit property was Abdul Aziz who in the year 1947 gifted the suit property orally to the plaintiff-Noor Mohammad. On the basis of oral gift, the plaintiff instituted Civil Suit which vide judgment and decree dated 25.09.1982 (Ex.D/2) was dismissed holding the gift to be not proved, which attained finality due to dismissal of plaintiff’s appeal vide judgment and decree dated 21.02.1984 (Ex.D/3). It is alleged that thereafter Abdul Aziz executed registered Gift deed in favour of the plaintiff Noor Mohd. on 22.02.1986 (Ex.P/2). Hence on the basis of regd. gift deed second suit for eviction on same set of facts, was filed.

3. the plaint allegations as well as title of the plaintiff over the suit house, however, the defendant had admitted to have taken the house on rent from Abdul Aziz. Denying the oral gift made in the year 1947, so also the subsequent registered gift deed dtd. 22.02.1986, it is contended that Abdul Aziz had no right to execute the regd. gift deed, which is illegal and does not confer any right to the plaintiff(s). Denying the availability of grounds of eviction taken by the plaintiffs, the suit was prayed to be dismissed with exemplary cost.

4. many as 12 issues and recorded evidence of the parties and vide its judgment and decree dated 23.12.1998 held that the suit is not barred by res-judicata and holding the regd. gift deed (Ex.P/2) to be a valid document, held that the plaintiffs/appellants are owner of the house, but dismissed the suit for eviction in its entirety.

5. plaintiffs/appellants and defendant/respondent both by filing separate two appeals. Civil Appeal no.3-A/1999 was filed by defendant-Abdul Karim challenging the findings recorded by learned trial court on issue no.1,2,4,6&11. Civil Appeal no.2-A/1999 was filed by plaintiffs challenging refusal of decree of eviction by learned trial Court. Both the Civil Appeals were decided by the same presiding officer but by writing separate two judgements. Learned first appellate court dismissed the Civil Appeal no.2-A/1999 filed by the plaintiffs but allowed the Civil Appeal No.3-A/1999 filed by the defendant and reversed the findings on issue no.1,2,4 and 6 recorded by learned trial court. The present second appeal has been filed by plaintiffs/appellants challenging the judgment and decree passed by first appellate court in Civil Appeal No.3-A/99. Although, just after cause title of the memo of appeal, the challenge appears to have been made only about the judgment passed in Civil Appeal No.3-A/99, but in the memo of appeal the plaintiffs/appellants have taken all the relevant grounds seeking decree of eviction.

6.

was admitted by this court on the following substantial questions of law :-

“1. Is the gift deed dated 22.02.1986 by Abdul Aziz Khan in favour of

Late Noor Mohd as it was executed to confirm the oral gift in 1947 which was not relied upon in the previous litigation between late Noor Mohd. and Abdul Kalim (respondent) or because Abdul Aziz had left India ?

2. Is the finding under Section 12(1)(a) of the M.P. Accommodation

Control Act, 1961 manifestly wrong in law ?”

7. appellate court has erred in reversing the judgment and findings of learned trial court recorded on the issue no.1,2,4 and 6 by holding the present suit to be barred by resjudicata and that the registered gift