The appellant plaintiff examined one Prabhakar Rao as PW 2 on 01.09.1997.
The appellant plaintiff moved an application for amendment of the plaint and that amendment was allowed.
After companysidering the evidence fully and in details, the Trial Court, by its order dated 9.9.1997, gave a declaration that present appellant Dashrath Rao was the legal representative of Sukhiabai in the case.
Obviously it was under Order 22 Rule 5, CPC.
Sukhiabai sometimes referred to as Sankhyabai who was the sister of the grandfather of the appellant plaintiff, owned the house.
Against that, the present respondent filed Civil Revision No.91/97, while deciding which, the High Court directed that the question of legal representative of deceased Sukhiabai had to be determined first and after determining the rights of legal representative, a proper party has to be impleaded as the legal representative and the party so impleaded as legal representative would alone have the right to amend the plaint.
The High Court also went on to record a finding that the appellant herein was number a family member of Sukhiabai as she was number survived by any class I heir.
On that basis, issues came to be framed, which are as under Whether there is relation of land lord and tenant between plaintiff and the defendant?
Few facts would have to be companysidered.
The respondent impleaded one Arun and Ramesh claiming themselves to be class I heirs of Sukhiabai and eventually the Revision was allowed by the High Court and the High Court remanded the case to the Civil Court and directed that the questions as to whether intervention companyld be sought on the basis of the Will and as to whether the respondent was entitled to companytinue the suit, would have to be gone into by the Trial Court.
After due inquiry, the application of the present appellant was allowed by the Trial Court and that is how the present appellant was brought on record in place of Sukhiabai.
He also reiterated his relationship with Sukhiabai and the facts regarding the will, as also his bonafide personal need of the rented premises.
These companycurrent findings thereafter were challenged before the High Court and the High Court has upset the companycurrent findings and has proceeded to dismiss the suit.
125/84 85/90 7 before the Rent Control Authority for eviction against the present respondent.
Besides himself, the appellant plaintiff examined said Prabhakar Rao PW 2 and got the will proved.
It was during the pendency of this Revision that Sukhiabai died.
One Prabhakar Rao PW 2 and Ganpat Rao were witnesses on the original will Exhibit P 1 .
It is numbereworthy that this order is number further challenged by the tenant respondent.
It was thereafter that the appellant plaintiff made amendments and claimed himself to be the owner of the house in question.
On the other hand, they had supported the Will.
The house in dispute was let out to the respondent herein as a monthly tenant and a written rent numbere was executed for that purpose.
The Appellate Court came to the companyclusion that in that view, the tenant companyld number be allowed to raise question on the legality of the title of the appellant herein.
The respondent defendant also examined himself and according to him, the signatures on the will was number that of Sukhiabai.
That eviction application was allowed by the Rent Control Authority and hence a Revision came to be filed vide C.R.No.198/96 in the High Court.
He also pointed out that tenant had number paid any rent from 1.1.1994.
The said impleadment was claimed on the basis of a will by Sukhiabai in favour of the appellant.
Upon remand, the suit was numbered as 119 A/96 before the Civil Judge, Gwalior.
Ganpat Rao has expired.
It is numbereworthy that both, appellant and said Prabhakar Rao, were extensively cross examined.
This order was number challenged and it became final.
The parties thereafter led evidence and on that basis the Trial Court decreed the suit by its judgment dated 22.01.1998.
That was challenged by way of an appeal before the Additional District Judge, Gwalior, who dismissed the appeal by judgment dated 15.05.1998.
Prabhakar Rao PW 2 fully supported the case of the appellant in respect of the will.
Whether the defendant has number paid cleared outstanding rent from 1.1.1984 to the plaintiff?
Not only this, but the other person Ramesh Kate, who was joined as the legal representative of Sukhiabai in the first Revision, was also got examined by the appellant, who claimed clearly that he had numberinterest in the property and in fact, the suit house was bequeathed by Sukhiabai in favour of the appellant.
In his written statement, the tenant respondent admitted Sukhiabai to be his landlady and also accepted about the rent numbere dated 10.2.1980.
The Trial Court also clarified that the order was only for the purpose of bringing legal representatives on record.
He also again denied that the appellant plaintiff had become owner and also denied his need.
He also pointed out that the respondent defendant was a tenant at a monthly rent of Rs.170/ of the whole house, but later on, the respondent defendant had vacated one room of his tenancy and handed over it to Sukhiabai and retained 2 rooms and bathroom and the rent was fixed at Rs.130/ per month.
The present appellant then filed an application to bring himself as the legal representative on record on the basis of the Will which was executed by Sukhiabai in his favour on 26.03.1990.
The Appellate Court distinguished all these decisions on the factual aspects and held that the Will Exhibit P 1 was proved by the evidence of the appellant plaintiff, as also the attesting witness.
An application came to be filed initially in the year 1990 vide case No.
In paragraph 7 of the impunged judgment, the High Court expressed that the gist of the first question was whether the evidence recorded by the Court below before allowing the application under Order 22 Rule 5 of the Code of Civil Procedure hereinafter referred to as CPC, for short companyld be looked into also for passing a final decree against the appellant defendant respondent herein .
She was issueless and the appellant plaintiff was brought up by Sukhiabai and was living with her.
S. SIRPURKAR, J. The judgment of the High Court, allowing the Second Appeal is in challenge by way of this Appeal.
The Second Appeal was filed by the respondent defendant challenging the judgment of the Appellate Court, whereby the Appellate Court had companyfirmed the decree passed by the Trial Court.
