Unknown vs Smt. Taresh Gupta And Others"
2022 Latest Caselaw 347 UK

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      22.02.2022                        SA No.2 of 2022
                                        Hon'ble Alok Kumar Verma, J.

This Second Appeal has been filed against the judgment and decree dated 06.10.2021, passed by the learned District Judge, Dehradun in Civil Appeal No.169 of 2018, "Mukesh Kumar Gupta vs. Smt. Taresh Gupta and Others", whereby the learned First Appellate Court has allowed the Civil Appeal partially and the judgment and decree dated 13.11.2018, passed by the learned trial court in Original Suit No.484 of 2012 is modified. By the impugned judgment of the learned Appellate Court, the plaintiff is declared a joint tenant in the shop-in-question.

Heard Mr. Neeraj Garg, learned counsel for the appellants.

The learned counsel for the appellants submitted that admittedly, the shop-in-question was purchased by the original defendant Mr. Swaraj Gupta (deceased). The learned counsel for the appellants further submitted that the case of the plaintiff is that the said shop was purchased from the income of the joint family business.

He further submitted that the plaintiff had sought relief to declare him owner of the said shop and, alternate, he also sought relief to declare him a tenant of the said shop.

The learned counsel for the appellants argued that these reliefs sought by the plaintiff were destructive and contradictory reliefs, therefore, the plaintiff cannot seek the said contradictory reliefs.

The Second Appeal is admitted on the following substantial questions of law:-

(a)Whether learned lower appellate court was justified in declaring plaintiff/respondent no.1 as joint tenant in property relying upon definition of tenant U/s 3(a) of UP Act No.13 of 1972, whereas on 06-02-1966, the tenant, Sri Ram Swaroop Gupta, was died, and at that time the UP Act No.13 of 1972 was not enacted and provisions of United Provinces (Temporary) Control of Rent and Eviction Act, 1947 were applicable.

(b)Whether learned lower appellate court was justified in declaring plaintiff/respondent no.1 as joint tenant in the property in the absence of any pleading or relief of joint tenancy that too, ignoring the admission of plaintiff that the rent receipt was being issued in the name of defendant no.1, who purchased the property vide sale deed dated 11-07-1983 and became the owner.

(c)Whether plaintiff/respondent no.1 could have been permitted to take mutually destructive plea and to seek contradictory alternative relief and whether learned Revisional Court was justified in allowing amendment application paper no.101C2 of plaintiff in Civil Revision No.172 of 2013.

(d)Whether learned lower appellate court was justified in allowing the appeal, filed by plaintiff/respondent no.1, without reversing and upsetting the findings, recorded by learned trial court on the issues framed.

Issue notice to the respondents. Steps to be taken within a week. Post this case on 11.04.2022 along with SA No.3 of 2022 and SA No.4 of 2022.

The parties are directed to maintain status quo regarding the nature of the shop-in-question.

(Alok Kumar Verma, J.) 22.02.2022

Neha