My IN THE HIGH COURT OF CHHATTISGARH A1- BILASPUR (C.G.) Singm 38nd? Second Appeal No. 57/1. [2005 : “Krishna, S/o. Lalaram Aged about 45 years 1w R/o. Ganjpara, Mahasamund Tahsil and District Mahasamund (0G) VERSUS {t ev Raj Lunia .S/o. Tejmal Lunia, aged 39 years R/o. Nehru Chowk, Mahasamund Tahsil and District Mahasamund, (C-G-) ./ SECOND APPEAL UIS. 100 OF THE CODE OF CIVIL PROCEDURE IN THE HIGH AT} Se¢?n4 / w‘VQfJjlw/ /b /b o' Krishna (died) through his 1ega1 y f heirs (1) a. ' Hemant Tamboh aged about 33 5" 9‘ ,6 §~yi ' years, S/ 0 late Krishna . \ Q ' “go“, b Basant Tamboli aged about 3O $q~¥g a’ V years, S/o late Krishna. AA. q’w Sharad Tamhoh aged about 20 Qw' ‘ ’ -\ years, S/o late Krishna. d. Ku. Aarti Tamboli aged about 18 years, D/o late Krishna. A11 Iegal heirs i to iv residence of RESPONDENT ward No. 10, Ganjpara, ,x" Mahasamund, District— / P‘amm‘f _ . Mahasamund (co) Smt. Versha Pansari aged about 27 years, W/o Vinod Pansari, D/o late Krishna, R/ o Barai para, Lili Chowk, Raipur, District— Raipur (C.G.) HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No.562 of 2005 APPELLANTS: Defendants Krishna (died) through his legalheirs -Versus— RESPONDENT: Plaintiffs Present Mr. F.S. Khare, counsel forthe a. Shrl Kshitiz Sharma. counsel for the respondent. Dev Raj Lunia Single Bench: Hon’bleShri Prashant Kumar Mishra, J. ORAL JUDGMENT , (27-6—201 1) 1. This is a defendants’ appeal challenging the concurrent judgment and decree passed by the Court below directing the appellant to deliver the possession of the suit premises of the plaintiff/respondent. 2. The suit premises originally belonged to one Thela Bai, who executed the will in favour of Kuldeep, S/o Bhanwar Lal on 15.10.1985. The plaintiff along with his brother Paraschand and father Tejmal purchased the suit property from Kuldeep by registered sale deed dated 09.02.1994. On one part of the purchased property, one Mulchand was a tenant and was eperating a betel shop. According to the plaintiff, against the said Mulchand, three suits were preferred by the plaintiff’s predecessor in title. However, after the sale of the property to the plaintiff, the suits were withdrawn. Mulchand executed an agreement on 14.01 .1995 to the effect that he has handed over the possession cf the shop to the plaintiff. However, his nephew (Bhanja) shall remain in occupation for some time and thereafter, he shall remove his possession. lt was further stated by' the plaintiff that the present defendant/appellant refused to vacate the premises, therefore, the plaintiff was constrained to file a suit for possession in the month of May, 1995. . According to the appellant, he was the sub-tenant of the original tenant Mulchand and therefore, the plaintiff’s case that he is not entitled to . , occupy the premises or that his possession is that of an encroacher is not \correct. The defendant challenged the title of the plaintiff on the ground \ 3 @ that the will executed by Thela Bai in favour of Kuldeep was not in accordance with law. ln substance, the defendant claimed possession through Mulchand and challenged the genuineness of the will. 4. Both the Courts below have found that the defendant cannot challenge the title or the relationship of the landlord and tenant and that his possession was not that of sub-tenant but he is a trespasser. 5. Learned counsel for the appellans would argu that the finding rgarding the status of the appellant as trespasser is pererse and that the suit was not maintainable without legal heir ‘of Mulchand, the original tenant, having been joined as fendants. With regard to the first pea of trespasse, it is to be seen that the finding with regard to the nature r the status of the appellant on the suit premises is ssentially a finding of fact. Since both the Courts below have concurrently held that the appellant is a trespasser and further that it is the appellant’s own case that he was in occupation of te premises on behalf o Mulchand and was paying rent to the plaintiff on behalf of Mulchand, f he cannot raise a plea that he s sub—tenant. Once the defendant accepts that he has paid rent to the present plaintiff and the case of the plaintiff that Mulchand has already vacated the premises and handed over the possession on 14.01.1995, the position of the appellant cannot be that of a sub-tenan 7. The second argument raise by the learne counsel for the appellant is about the non-joining of the legal heir of Mulchnd. In this regard, it is to be seen that it is the case projected by the plaintiff from the very beginning that Mulchand handed over the possession to the aintiff on 14.01.1995. The agement/recipt o delivery o possession has been proed by h plaintiff as Ex.P-15.' ln the said agreement itself it hs been stated that ’the present appellant is operating the betel shop on his behalf and he shall vacate the premises and hand ove the possession to the plaintiff. . The appellant has not examined the said Mulchan to contradict the l contents of EX.—1~5. Thus, Mulchand having vacated the premises even before the filing of the suit neither the said Mulchand nor any of his legal ‘ l l i i e e v s de . l r O e h i a t. d d s a pl ree f f v te a r 8 d P p heirs were necessary party in the suit and the suit did not uffer em non- joinder of necessary party. i 9. No substantiai question of Iaw arises for determination in this appeal. The instant second appeai fails and is hereby dismissed; Sd/- Prashant kumar Mishra Judge Ppiya