Smt Rajni Devi And Ors vs Gauri Shankar
2022 Latest Caselaw 5251 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

            S.B. Civil Second Appeal No. 103/2014

Smt Rajni Devi wife of Shri Jagdish Prasad and Anr.
                                                                 ----Appellants
                                   Versus
Gauri Shankar son of Late Harnath
                                                                ----Respondent

For Appellant(s)         :     Mr. Nitin Jain
For Respondent(s)        :     Mr. Ajay Gupta



           HON'BLE MR. JUSTICE SUDESH BANSAL

                                    Order

28/07/2022

Appellants-plaintiffs have preferred this second appeal under

Section 100 of Civil Procedure Code, assailing the judgment and

decree dated 07.12.2013 passed by Additional District Judge No.2,

Sikar in Civil Appeal No.56/2009, the first appellate court allowed

the appeal filed by respondent-defendant and dismissed the

judgment and decree dated 21.05.2009 passed by Civil Judge

(Senior Division), Dantaramgarh, Sikar in Civil Suit No.10/2002

whereby suit for eviction, possession and mesne profit filed by

appellants-plaintiffs has been decreed.

Counsel for appellants-plaintiffs submits that eviction suit

was filed invoking provisions of Section 106 of the Transfer of

Property Act. The trial Court vide judgment dated 21.05.2009

finds that there is relationship of landlord and tenant and notice

for termination of tenancy has duly been served upon respondent,

as such decreed the suit and passed decree for eviction along with

mesne profit. Respondent-defendant preferred first appeal and the

(2 of 3) [CSA-103/2014]

first Appellate Court has dismissed the suit with finding that the

relationship of landlord and tenant does not exist between parties.

Counsel for appellants submits that such findings are perverse as

the tenancy is oral and there are letters of respondent-defendant

on record which show that himself requested for some time to

vacate the suit premises. He submits that there is ample evidence

on record to prove the relationship of landlord and tenant between

parties and findings of first Appellate Court are perverse in this

regard and finally judgment and decree passed by the trial Court

deserves to be restored.

Counsel for respondent submits that judgment of the first

Appellate Court is well considered and reasoned which requires no

interference.

Having heard counsel for both parties, this Court finds that

the second appeal requires consideration. Second appeal is

admitted on following substantial question of law:-

(1) Whether the first Appellate Court committed perversity in recording a finding that whether the findings recorded by first Appellate Court that relationship of landlord and tenant between parties does not exists are perverse and contrary to the evidence/ material produced on record by both parties?

(2) Whether the first Appellate Court has committed illegality and jurisdictional error in setting aside the judgment and decree for eviction dated 21.05.2009 passed in Civil Suit No.10/2002 by the Court of Civil Judge (Senior Division), Dantaramgarh, Sikar and decree deserves to be upheld?"

Since respondent has already put in appearance, notices need

not be issued.

(3 of 3) [CSA-103/2014]

Record of both Courts below be summoned.

It is not in dispute that respondent-defendant is in use and

occupation of suit property and there is no stay application filed in

this second appeal.

(SUDESH BANSAL),J

NITIN/110

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