Allahabad High Court
Dhirendra Srivastava And 2 Ors. vs Lochan Singh on 28 April, 2016
Bench: Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 19
Case :- SECOND APPEAL No. - 420 of 2016
Appellant :- Dhirendra Srivastava And 2 Ors.
Respondent :- Lochan Singh
Counsel for Appellant :- Raghunandan Prasad Tiwari,Birendra Kumar Srivastava
Hon'ble Pramod Kumar Srivastava,J.
Heard learned counsel for the appellants on the point of admission of second appeal and perused the records.
In original suit, it was admitted case that in disputed property defendant was inducted as tenant by Shivram Srivastava who was landlord of the defendant. It is also admitted that after the death of Shivram Srivastava, plaintiffs claimed themselves to be the owner and landlord of disputed property and defendant Lochan Singh had been paying rent of said property to the plaintiffs, but that payment was stopped. Then plaintiffs had admittedly given legal notice under Section 106 of Transfer of Property Act, by which tenancy of defendant was terminated and then plaintiffs had filed suit for recovery of arrears of rent and damages for use of occupation of said property and also for eviction of defendant.
It is admitted by the defendant in written statement that original owner and landlord of disputed property was Shivram Srivastava and after his death, he had believed that plaintiffs are the owner and landlord of said property and had been paying rent to them, but later on he came to know that plaintiffs are not owner or landlord of the said property, therefore, he had stopped payment of rent. He pleaded that the plaint case is based on incorrect facts and is liable to be dismissed.
In original suit, plaintiffs claimed themselves to the successor in interest of Shivram Srivastava regarding disputed property on the basis of will executed by him. After affording opportunity of hearing to the parties, trial court had decreed the original suit in which it was held that plaintiffs are owner and landlord of disputed property and defendant's tenancy was terminated by them by legal notice. The trial court had also appreciated the reply of notice given by defendant to plaintiffs before institution of suit, in which defendant had admitted the ownership and land-lordship of plaintiffs.
Against the judgement of trial court, civil appeal no. 54 of 2008 was preferred by the defendant, which was heard and allowed by the judgment dated 15.2.2016 of Additional District Judge /Special Judge (SC/ST Act) Jalaun at Orai. In this order, first appellate court had given finding to the effect that disputed property was not purchased or owned by Shivram Srivastava and after his death plaintiffs cannot be the owner of this property. On these findings, lower appellate court had allowed the appeal and dismissed the original suit.
Against the judgement of first appellate court, present appeal has been preferred by plaintiffs of the original suit.
Learned counsel for the appellants/ plaintiffs contended that before institution of suit, defendants had admitted the ownership and land-lordship of plaintiffs and has been paying rent of this property to plaintiffs, but these facts were erroneously ignored. During first appeal it was pleaded on behalf of the plaintiffs that since defendant had admitted the land-lordship of plaintiffs earlier, therefore he is estopped from denying their land lordship and title under Section 116 of Indian Evidence Act but the first appellate court had ignored this arguments and decided the suit on the basis of alleged title of Shivram Srivastava without reversing the findings of trial court. Therefore, appeal should be admitted for being allowed.
A perusal of the record reveals that defendant had never denied the title of Shivram Srivastava over disputed property and had admitted him as owner and landlord of this property. But lower appellate court had gone beyond that and considered some documents on the basis of which Shivram Srivastava had acquired properties and gave the finding that disputed property was not purchased by him. At this stage, this contention of learned counsel for the appellants cannot be said to be unacceptable that when defendant/respondent had been admitting ownership and land lordship of Shivram Srivastava, who had put him in possession of this property as tenant, then he is estopped from denying title of his landlord. This contention is also not unacceptable at this stage that defendant/respondent had been admitting the land-lordship and title of plaintiffs/appellants and had admitted the same by reply of his notice before institution of original suit then he cannot pleaded otherwise. These points need consideration. Therefore this appeal is admitted.
Following substantial questions of law are framed.
"1. Whether the judgment of first appellate court is erroneous and perverse as it has been passed without framing points of determination on relevant points of dispute necessary for determining the appeal ? If so, its effect ?
2. Whether the judgment of first appellate court is erroneous and perverse because it had ignored the admission of plaintiffs regarding ownership and land-lordship of plaintiffs before institution of suit by reply of written notice and by payment of rent ? If so, its effect ?
3. Whether the judgment of first appellate court is erroneous and perverse when it had denied the admitted fact of previous title and land lordship of Shivram Srivastava ? If so, its effect ?"
Summon the lower court records.
Issue notice to the respondents. Steps within 15 days by both ways.
List this case on 3rd week of August, 2016 for final hearing.
Till further order, defendant/respondent is directed not to raise any construction or change nature of disputed property and not to alienate or create charge over which in favour of any third party.
Order Date :- 28.4.2016
Sanjeev
