Fresh cause of action for eviction leads to a maintainable suit despite a previous dismissal.

JUDGMENT

(Passed on 02/05/2023)

1. This Second appeal under Section 100 of Civil Procedure Code (for brevity, CPC) has been filed by the appellants against the impugned judgment and decree dated Signature Not Verified Signed by: SANJAY

06/03/2012 passed by Court of 10^th Additional District Judge, Gwalior in Civil Appeal No. 10-A/2012, whereby, the judgment and decree dated 16/09/2011 passed by the Court of 1^st Civil Judge Class-II, District Gwalior in Civil Suit No. 48-A/2011 has been partly reversed (in respect to godown 'B'), by virtue of which, suit had been decreed giving relief of permanent injuction in respect to two godowns marked and shown as 'B' and 'C' in the plaint map. 2. The necessary facts for disposal of the present appeal in short are that suit was filed by the appellant/plaintiffs stating therein that the predecessors of plaintiffs have been inducted as tenants in the shop marked and shown as 'A' in the plaint map. Ever since induction of predecessor of plaintiffs as tenant in the year 1993 they have been involved in business of clothing in the name of Vatanmal Thakurdas. During subsistence of tenancy, plaint required godowns for storing their stock of cloth, so, they took/ entered into tenancy for two godowns with the defendants Signature Not wVehrifiiecdh are marked and shown as 'B' and 'C' in the plaint map Signed by: SANJAY @ rent of Rs. 135/- and Rs. 60/- respectively. There arose family disputes in the family defendants with regard to present disputed property and their other properties. In the said disputes, competent Court has appointed Shri M.N. Pendarkar, Advocate as Court receiver, and so, plaintiffs started depositing rent with the said Court receiver. Plaintiffs have lastly paid the rent on 15.09.1989 up till the period 31.08.1989, thereafter Court receiver has stopped receiving the rent from plaintiffs which was intimated to defendants upon which they replied that defendants will inform the plaintiffs after resolution of disputes. But, defendants did not inform anything to plaintiffs and, defendant no. 2 straightway threatened plaintiff no. 1 in the year 2004 to evict the godown 'B' and in furtherance he started dismantling terrace and parapet wall. So, plaintiffs filed civil suit no. 16A/2005 before the civil court wherein defendants have admitted their wrong act. Thus, plaintiffs got that suit dismissed in default. However, defendants, Signature Not aVgeraifiiend with their ill intention, have started damaging godown Signed by: SANJAY 'B' and, on 25.09.2010, defendants threatened plaintiffs to evict both the godowns. Therefore, the suit was filed for perpetual injuction for the relief to prohibit the defendants to interfere in the settled possession of plaintiff over the godowns 'B' and 'C'.

3. The defendants have filed their joint written statements, but did not specifically deny that the disputed godowns have never been given on tenancy to plaintiffs. It is contended by them that 'B' godown is merely Khandhar which is in possession of defendant no. 2. Further godown marked as 'C' is in closed condition for last 15-20 years. Receiver has already been removed by the Court on 31.07.1989, since then, actual physical possession of disputed godown is lying with defendants. Plaintiffs have never paid any rent to defendants. Also, plaintiffs have never been into possession. Predecessor of plaintiffs i.e. Dilip Kumar had earlier filed a suit which was dismissed in non-production of evidence. Thus, present suit is not Signature Not mVearifiiendtainable and deserves to be dismissed.

Signed by: SANJAY

4. On the basis of pleadings learned trial court has framed as many as six (6) issues and parties were directed to lead their evidence. After hearing the learned counsel for the rival parties and perusing the oral & documentary evidence available on record, learned t