IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 94 of 2007 (Old No. 1274 of 1988) Shri Chandramani S/o Shri Indramani R/o Village Kurchaun Patti Talla, Tikhoon at present Shopkeeper Kathpuria (Shitla Khet Road) Patti Talla Tikhoon, Tehsil and District Almora .…Appellant. Versus 1. Shri Prem Ballabh S/o Krishna Nand R/o Village Deoli Khan, Patti Talla Tikhoon, Tehsil and District Almora. 2. Shri Datt Ram (since deceased) S/o Moti Ram R/o Village Kurchaun, Patti Talla Tikhoon, Tehsil & District Almora 2/1 Smt. Kalawati Devi W/o Late Datt Ram 2/2 Sri Damodar Datt 2/3 Sri Pitambar Datt 2/4 Sri Girish Datt All sons of Late Datt Ram R/o Village Kurchauri, Patti Talla Tikhoon Tehsil District Almora. 2/5 Smt. Madhu Joshi, D/o Late Datt Ram W/o Shri Nand Kishore Joshi R/o Village Mehta, P.O. Bagbali Pokhar District Almora. 2/6 Smt. Khasti Devi, D/o Late Datt Ram W/o Badri Datt Pandey R/o Village Gwalne, P.O. Habalbag District Almora. 2/7 Smt. Amriti Kandpal D/o Late Datt Ram W/o Devi Datt Kandpal R/o Village Baroor, P.O. Darman District Almora. ……….Respondents. 2 Shri Gopal Krishan, Advocate for the appellant. Shri Jitendra Chaudhary, Advocate for the respondents. Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 12.04.1988, passed by first appellate court (District Judge, Almora) in civil appeal No. 09 of 1986, whereby judgment and decree dated 17.03.1986, passed by the trial court (Civil Judge, Almora) in suit No. 08 of 1985, is set aside and the plaintiff’s suit for ejectment of defendant No. 1 from the shop in suit, is decreed. Also, decree for recovery of rent amounting Rs. 2,720/- is passed. [Earlier this second appeal was decided vide order dated 11.12.2003, but said order was set aside by the apex court vide order dated 25.04.2007, and matter was remitted back to this Court] 2. Heard learned counsel for the parties. 3. Brief facts of the case are that the plaintiff Prem Ballabh instituted suit No. 08 of 1985, against the defendant No. 1 for ejectment of recovery of rent with the pleading that defendant No. 2 vide agreement dated 02.12.1964, agreed to sell the shops for consideration of Rs. 3,000/- and possession of the shop was given to him. It is further pleaded that defendant-Chandramani (present appellant), was inducted as tenant in 3 February 1982 in the shop in question, situated in Village Kathpuriya, who did not pay rent to the plaintiff, hence the suit for ejectment and recovery of arrears of rent after serving notice on defendant No. 1. 4. Defendant No. 1 appears to have contested the suit, stating that he is not tenant of the plaintiff. It is pleaded by him that he is tenant of defendant No. 2, who is the owner of the shop. Defendant No. 2 also filed his written statement and denied that the plaintiff is landlord of defendant No. 1. It is pleaded by him that deed dated 04.12.1964, relied by plaintiff, related to a loan transaction of Rs. 3,000/- and by said document, title does not get transferred to the plaintiff. 5. The trial court dismissed the suit but first appellate court decreed it. This second appeal was filed before Allahabad High Court, where it was admitted on 19.05.1988 on following substantial question of law:- Whether the defendant is estopped from making objection regarding the execution of the sale deed on the basis of the agreement dated 02.12.1964, and what was the nature of the document, which is referred, and whether the suit is barred by limitation? 4 This second appeal is received by this Court under Section 35 of U.P. Reorganisation Act, 2000 (Central Act, 29 of 2000), for its disposal. 6. The plaintiff-Prem Ballabh, filed separate suit No. 01 of 1985, for specific performance of contract of agreement dated 02.12.1964, which was decreed by the trial court and affirmed by the first appellate court against the present defendant No. 2 –Dutt Ram. However, this Court, today vide its order dated 10.12.2009, allowed second appeal No. 95 of 2007 (Old No. 1275 of 1988), and set aside judgment and decree, passed by the courts below, holding that the deed dated 02.12.1964 was an unregistered mortgage deed and decree of its specific performance could not have been passed. Also, this Court found that the suit for specific performance of contract was instituted after a period of 17 years, as such, barred by time. The said appeal was also heard with this appeal. In view of the judgment and order, passed today in second appeal No. 95 of 2007 (Old No. 1275 of 1988), the suit filed by the plaintiff on the basis of said deed for ejectment of defendant No. 1 Chandramani (present appellant), cannot be said to be maintainable. This Court has in said judgment and order clearly held that the deed dated 02.12.1964, was an unregistered mortgage deed and not the agreement of sale executed in favour of the plaintiff. It has been further held 5 in said case that suit for specific performance of contract was barred by time. As such, plaintiff has no title over the property in suit. The first appellate court has committed error of law in reversing the finding of the trial court by holding that the defendant No. 1 is tenant of the plaintiff. Substantial question of law stands answered accordingly for the reasons as discussed in the order dated 10.12.2009, passed today in Second Appeal No. 95 of 2007 (Old No. 1275 of 1988). 7. Having heard learned counsel for the parties, and for the reasons as discussed above, this appeal deserves to be allowed. Accordingly, the appeal is allowed. Judgment and decree, passed by the first appellate court, is set aside. Judgment and decree, passed by the trial court is restored. (Prafulla C. Pant, J.) Dt:10.12.2009 Sweta 6 7 8 9 10 11 12