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Ram Swaroop Verma & Others v. Smt.Khimia & Others - SECOND APPEAL No. 1580 of 1976  RD-AH 4614 (21 October 2005)
Court No. 9
Second Appeal No.1580/1976
Ram Sarup Verma (deceased) Vs. Smt. Khimia (deceased)
Hon. Sunil Ambwani, J.
1. Heard Shri M.K. Gupta, learned counsel for the appellants and Shri Krishna Mohan appearing for the respondents.
2. This plaintiff's second appeal arises out of the Original Suit No.638/69 for arrears of rent and eviction of the defendant from an open piece of land. The suit for eviction was dismissed by Ist Addl. Munsif, Aligarh on 23.5.74, with plaintiff entitled to withdraw the rent deposited from the Court. The Civil Appeal No.164/74 against this judgment in Original Suit No.638/69 was dismissed on 2.6.76.
3. Shri M.K. Gupta, learned counsel for the appellants submits that the appeal was admitted on 23.9.76, and thus the provisions of the Code of Civil Procedure prior to its amendment of the year 1976, which came into effect from 1.2.77, will be applicable and that the scope of second appeal is wider, than its restricted consideration, only on any substantial question of law. He submits that the suit for ejectment has been wrongly dismissed by the Trial Court, disbelieving the partition decree between the purchaser and ancestors of the plaintiff, who was co-sharer of the land along with his brothers, and secondly on the ground that co-sharer could not file suit for ejectment without impleading the other co-owner.
4. Lastly he submits that Courts below has grossly erred in law in dismissing the suit, holding that there were construction on the land and thus suit was not maintainable in the Civil Court as the tenant was protected by U.P. Act III of 1947.
5. Learned counsel Shri M.K. Gupta has relied upon the judgment of this Court in Uma Shankar Vs. XIth Additional District Judge, Aligarh and Others, 2004 (1) ARC 418 wherein this Court relying upon the case reported in AIR 1997 SC 998 held that tenant cannot challenge the family partition amongst the landlord except to show that it was entered into in order to make out a ground for ejectment under relevant Rent Control Act.
6. He further placed reliance in the case of Manoj Kumar Vs. Xth Additional District Judge, Muzaffarnagar and others reported in 2004 (2) ARC 322 in which relying upon the judgment reported in 1993 SC 1587 wherein the Supreme Court reversed a Full Bench of Gujarat High Court, AIR 1973 Guj. 131, held that suit for eviction of tenant filed by one of the co-owners/ landlords even without impleading other co-owners/ landlords is quite maintainable unless objected to by other co-owners landlords.
7. Shri Krishna Mohan learned counsel for the respondents did not dispute the proposition of law and thus I find that the Courts below committed an error of law in holding that tenant could challenge decree of partition between co-owners and that the suit was maintainable even by co-owner.
8. This brings the Court to the third question as to whether the disputed land was open piece land or there were constructions on the land, bringing it within the purview of U.P. Act No. III of 1947.
9. I do not find much substance in the submissions of Shri M.K. Gupta that in proceedings under Section 145 of Cr.P.C., the defendant had made any such admissions in his objections before the Magistrate that the attached movables and construction were not on the land let out to him by the plaintiff. The Appellate Court has recorded a categorical finding that the defendant has sufficiently explained his objections in proceedings under Section 145 Cr.P.C. in which he stated that his constructions are on P.W.D. land. These objections were filed by the defendant only to save his properties and do not constitute an admission against his rights which were protected by the U.P. Act No.III of 1947.
10. In the plaint the plaintiff has not given the area and measurement of the boundaries. The description of the property shows that towards north there is entry of the plot, thereafter Nala, and G.T. Road. The Commissioner's report and map, (document No.70 and 71) clearly shows that there are Bhattis for making tea and Rotis towards north of the disputed land. Thereafter, there is an open space of 2' towards North West and 4.3' towards North East. Thereafter, there is Nala and then G.T. Road. The property, therefore, is clearly demarcated in Commissioner's map and matches the description given at the foot of the plaint.
11. The Courts below, therefore, did not err in law in holding that constructions stood on the disputed land and that the defendant is protected under the provisions of U.P. Act III, 1947. The judgments of the Courts below, as such, in my opinion do not require any interference of this Court.
12. The Second Appeal is, accordingly, dismissed.
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