S.B.Civil Second Appeal NO.287/2004

Smt. Laxmi Devi & Ors.

vs

Pukh Raj

DATE OF ORDER : - 11.10.2004

HON'BLE MR. PRAKASH TATIA,J.

Mr. N.K.Rai,for the appellants.

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Heard learned counsel for the appellant.

The appellant is aggrieved against the judgment and decree dated 13^th

May, 2002by which the trial court passed the decree for eviction against the

appellants. The appeal preferred by th appellants was also dismissed by the

first appellate court vide judgment and decree dated 18^th May, 2004.

Learned counsel for the appellants submitted that the appellants case

was seriously prejudiced because of the fact that plaintiff in his plaint

categorically stated that defendants-appellants are not tenants and he paid the

court fees treating the appellants-defendants as trespassers. However,

learned counsel for the appellant further submits that the plaintiff

subsequently also paid the court fees by valuing the suit for eviction against

the tenant. According to learned counsel for the appellants, the trial court

framed the issue no.4 in a manner which caused serious prejudice to the

appellants. Learned counsel for the appellant submits that the consolidated

suit, on the basis of the title as well as on the basis of the tenancy was not

maintainable.

I perused the facts of the case. The case of the appellants themselves is

that they are tenant in occupation, they paid the rent of the premises in

dispute upto 14^th July, 1995, that too, through court by initiating proceedings

under Section 19A of the Rajasthan Premises (Control of Rent and Eviction) Act,

1950. That plea was accepted by the trial court. The trial court found that the

appellants-tenants acquired suitable residential accommodation and in fact,

they shifted to that residential accommodation. The courts below held that

the appellants are not using the premises in dispute since last more than 8

months. These findings of facts were upheld by the first appellate court and a

bare perusal of the judgment of the two courts below reveals that the two

courts below considered the voluminous documentary evidence also in addition

to the oral evidence for recording the finding. In view of the above, the

evidence are binding. The contention of learned counsel for the appellants

that the issue no.4 was not properly framed and it caused prejudice to the

appellant is devoid of any force in view of the fact that the appellants were

fully aware that plaintiff is seeking decree on the ground that the appellants

have acquired a suitable residential accommodation, that too, of two storied

building. On this issue, the evidence was led by both the parties, oral as well

as documentary. Therefore, the appellants were fully aware about the issue

involved and it has not caused any prejudice to the appellants at all. The

contention of learned counsel for the appellant that the consolidated suit was

not maintainable, has not been supported by any of the provisions of law,

which bars the suit, particularly when the suit for eviction in the State of

Rajasthan is a civil suit and the Act of 1950 only gives additional protection to

the tenant, but suit for eviction is a civil suit only and is entertained by Civil

Court and not by any tribunal.

In view of the above, I do not find any merit in this appeal and the same

is hereby dismissed.

(Prakash Tatia), J.

c.p.goyal/-