JUDGMENT
S.N. Supra, J.
(1) This Regular Second Appeal is directed against the judgment and decree dated September 11, 1989, passed by the First Appellate Court, whereby, the judgment and decree dated January 21, 1988, passed by the trial Court, were affirmed.
(2) For better appreciation of the questions, involved in the appeal, it is necessary to state, in brief, the facts of the case.
(3) Respondents predecessor-in-interest, namely, Shri Shiv Lal, filed a suit for possession of the permises in question, and for recovery of Rs. I 500.00 , on account of mesne profit, against the present appellants. Plaintiff’s case, before the trial Court was that Shri Shiv Lal, now deceased, was the owner/landlord of the permises, bearing No. 6574, at 70-D, Kamla NagaJ, Subzi Mandi, Delhi, and Smt. Laxmi Devi, the mother of appellants (defendants in suit), was a tenant in respect of two rooms, a Tehkhana, kitchen, common use of latrine, bath and compound, on the first floor, and a garage on the ground floor of the aforesaid property, on the payment of Rs. 80.00 as rent per mensem. Shri Sri Ram, husband of Smt. Laxmi Devi, was a partner with his two brothers, namely, Shri Shiv Lal and Shri Bishamber Dayal, in the partnership firm, known as M/s. Jugal Kishore Jagdish Pershad. As, the firm was running in losses, therefore, the same was dissolved and, an agreement/dissolution deed dated April 8, 1954, was executed by the 3 partners. To cover up the losses, the property in dispute was mortgaged with M/s. Banwari Lal Sri Ram for Rs. 30,000.00 and with M/s. Kanshi Ram Gopal Chand for a sum of Rs.l2,000.00 . It may be noticed that the aforesaid property was jointly owned by late Shri Sri Ram and Shri Shiv Lal, in equal shares. Under the dissolution deed, the liability of late Shri Sri Ram was of Rs. 21, 000.00 . It was stated that the value of the property was assessed at Rs. 60,000.00 and the share of late Shri Sri Ram, came to Rs. 30,000.00 . Late Shri Sri Ram agreed to sell his share in the property to Shri Shiv Lal, for a consideration of Rs. 30.000.00 , vide the aforesaid agreement. The case of plaintiff was, that he redeemed the property, by making the payment to the mortgagees. The liability of Shri Sri Ram was also discharged.
(4) After the death of Shri Sri Ram, his widow and sons, sold their share In the property, in favor of Shri Shiv Lal, by means of sale deed dated July 19, 1962. Smt. Laxmi Devi became the tenant in the permises under Shri Shiv Lal.
(5) According to plaintiffs, Smt. Laxmi Devi was in arrears of rent, accordingly, vide notice dated January 8,1965, her tenancy was terminated. Consequently, an eviction petition, under Section 14(1)(a) of Delhi Rent Control Act, 1958, (hereinafter called the Act), was filed by Shri Shiv Lal against Smt. Laxmi Devi. The petition was dismissed, by the Additional Rent Controller, on August, 8, 1969, which order was later on modified on October 7, 1969, by Rent Control Tribunal. The second appeal, filed by Smt. Laxmi Devi was dismissed by this Court on July 18, 1975. Smt. Laxmi Devi complied with the order and deposited the arrears of rent, as directed by the appellate Courts. The result was, that the eviction order was not executed against her.
(6) It was further alleged by plaintiff that Smt. Laxmi Devi died on November 4, 1977, leaving behind her defendants in suit, as her sons and daughters. Defendants I to 5 and 8 to 10 did not ordinarily live in the premises with the deceased Smt. Laxmi Devi, as member of her family. However, it was alleged that defendants 4 to 7 in suit, had been living in the permises, but, they had also their own independent source of income. None was financially dependent on Smt. Laxmi Devi. After her death, they inherited limited right to live in the suit property, as per the provisions of Delhi Rent Control (Amendment Act), 1976, hereinafter called the Amending Act. This limited right also came to an end, after the expiry of one year, from the date of death of Smt. Laxmi Devi. Defendants 2 to 7 in suit, contested the claim of plaintiffs and filed separate written statements. According to contesting defendants. Jurisdiction of the civil Court was barred, under Section 50 of the Act. as some of the defendants were in occupation as tenants and that the suit for possession, as such, was not maintainable. It was further alleged that Smt. Laxmi Devi, was not the only tenant, and the other defendants were also the tenants in the property. Moreover, some of the defendants were financially dependent upon their mother and, as such, were entitled to the protection under the amending Act. Defendants 4 to 7, also stated that plaintiff Shri Shiv Lal was not the sole owner of the property in dispute and, as such, he had no locus standi to file the suit, for possession. Defendants were the joint owners with Shri Shiv Lal, because after the death of their father Shri Sri Ram. on May 27, 1958, they inherited their undivided share in the property. With regard to the sale deed, it was alleged that Smt. Laxmi Devi was an illiterate lady and that Shri Shiv Lal prevailed upon her and got the documents of title, executed from her in his favor.
(7) Several issues were framed. By the concurrent findings, the Courts below rejected all the contentions, of the present appellants, and held that Shri Shiv Lal was the exclusive owner of the property in question. Smt. Laxmi Devi was alone the tenant and her tenancy had been validly terminated and the jurisdiction of the civil Court was not barred, under Section 50 of the Act. The suit of plaintiff was decreed.
(8) The appeal is at the admission stage. For admission, this Court is to be satisfied that the Case involves a substantial question of law. Though, no notice to show cause was issued to respondents, but a caveat was filed. One of the main contentions urged before me, by Mr. R..L. Tandon, learned Counsel for appellants, was that the only reason for amending the definition of the term tenant, by the Amending Act, was that, the Courts at that time, were of the view, that after the termination of contractual tenancy, a statutory tenant enjoyed only a personal right to continue in possession of the premises. As such, on his death, his heirs did not inherit any estate or interest in the original tenancy. According to Mr. Tandon, the object of amending the definition of the term tenant, was to give at least, some benefits to certain heirs or successors of the deceased statutory tenant. However, while conferring rights to tenancy on certain heirs/successors of a deceased statutory tenant, it was firstly limited to residential tenancies only and, not to commercial tenancies. Even, in respect of residential tenancies, the normal rule of succession was departed from, and a new rule of succession was introduced and the protection, provided by the Amending Act, was restricted to those particular heirs, who fell within the amended definition of tenant and subject to the fulfillment of all other conditions specified therein.
(9) In short, Mr. Tandon challenged the constitutional validity of the amended definition of tenant, in clause (L) of Section 2 of the Act. According to Mr. Tandon, the amended definition of the term tenant, in clause (L) of Section 2 of the Amending Act, is void, as being contrary to Article 14 of the Constitution of India. Moreover, there was no reasonable classification, amongst the various heirs. The amended definition of the term tenant, defeated the very object and reasons, for which the Act was amended by the Amending Act.
(10) Reliance has been placed upon the judgments in Damadilal and others v. Parashram and others, , Motor General Traders and another v. State of Andhra Pradesh and others Air 1984 Supreme Court 121; Smt. Gian Devi Anand v. Jeevan Kumar and others, ; Anand Nivas Private Ltd. v. Anandji Kalyanji’s Pedht and others, and J.C. Chatterjee & others v. Shri Sri Kishan Tandon and another, .
(11) Though, no notice was issued to respondents, however, Mr. Ishwar Sahai, appearing for the respondents, who have filed caveat, while assisting the Court, urged that the matter was covered by the judgment of the Full Bench of Delhi High Court in Smt. Mewa Devi and others v. Lala Sri Kishan Dag and another. .
(12) In Mewa Devi and others (supra), the reference to the Full Bench of this Court, as observed by the Full Bench itself, was the result, or consequence of the judgment of the Supreme Court, in Damadilal and others (supra). In the appeal, in which the reference to the Full Bench was made, the question involved related to the vires of Section 2(L) of the Act, as amended, vis-a-vif Article 14 of the Constitution of India, inasmuch as, by the definition of the expression tenant, in relation to the premises, let for residential purposes, was heritable to a limited exetent, whereas the tenancy, in relation to the premises let for non-residential purposes, was not shown. In that case, the tenancy was in respect of a shop, and after the termination of the contractual tenancy, the tenant became statutory tenant.
(13) The Full Bench observed :
“IT may also be observed that the extended definition of tenant which includes those heirs who are actually living in the premises with the deceased tenant succeed only to a limited extent because they only have a personal right which is not to devolve on any of bids or her heirs. This is so provided in Explanation Iii to the extended definition. Thus. eventually even these premises will go back to the landlord and will be available to the general public. The decision of the Supreme Court in the case of Damadilal (supra), where both the two decisions, namely, Anand Nivas Private Ltd. (supra) and J.C. Chatterjee (supra) were reconsidered, was delivered only on 7th May, 1976. Before the Supreme Court in Damadilal’s case, the question was whether heirs of a statutory tenant could continue the second appeal before the High Court against the decision of lower appellate Court against the statutory tenant and while deciding this question the Supreme Court emphasized that it will depend on the definition of the tenant as given in the statute, that is why the Supreme Court merely distinguished the earlier decisions in Anand Nivas and J.C.Chetterjee’s case and did not overrule them. It may be that the earlier definition of tenant in the Principal Act was such that it could cover both types of tenancies, namely, contractual tenancy and statutory tenancy but as observed by Fazil Ali, J. in Kewal Singh’s case that, “it is therefore, manifest that if the legislature considered in its wisdom to confer certain rights or facilities on the tenants, it could due to changed circumstances curtail, modify, alter or even take away such rights…”
It will be noticed that as of past in Delhi and in some other State’s Acts, The landlord has no right when the premises are let for commercial purpose or non residential purpose to obtain an order of eviction of such premises on the ground of his bona fide personal requirement for residence or for any other purpose. The Legislature before it had the prevailing view of Supreme Court as enunciated In the cases of Anand Nivas and J.C. Chatterjee and in its wisdom thought it fit to give further rights to certain heirs of statutory tenant where the premises were let for residential purpose but did not think, it fit to give the same protection or extend benefit to the heirs of tenants to whom premises were let for non residential purpose. This classification is in accord with the general classification running in the Principal Act between the premises let for residential purposes and the premises not let for residential purpose. …………… As noticed earlier, the Act is merely controlling and not banning eviction for all times to come. We are clearly of the view that the differentia between residential and non residential premises in its applicability to heritability of statutory tenancy is reasonable and it has nexus with the objects of the Act. That there is a basic reasonable classification between the premises let for residential purpose and the premises “not let for” residential purposes running thoughout the Rent Control Act, 1958 before its amendment and after its amendment and this classification is reasonable and in view of this classification there may be deference In their incidence and in their treatment. The distinction between the two types of premises may be in its applicability to heritability of statutory tenancy and that there is rational nexus between this classification and the purpose of the Act. In the result, we uphold the constitutional validity of the amendment to the definition of ‘tenant’ contained in Section 2(1) of the Delhi Rent Control Act, 1958. The directions contained in the judgment of Dayal, J., regarding the further hearing of this appeal and the connected appeal will now apply to these two appeals.”
(14) In Smt. Gian Devi Anand, (supra), the question, which arose for consideration before their Lordships of the Supreme Court was, whether the heirs of a deceased tenant, whose contractual tenancy, in respect of commercial premises, had been determined, were entitled to some protection against eviction, afforded by the Delhi Rent Control Act. 1958.
(15) The facts were, that one Wasti Ram, was a tenant in respect of a shop No. 20, New Market, West Patel Nagar, New Delhi. The contractual tenancy of ‘the tenant was terminated. The tenant died during the pendency of the proceedings. Ultimately, the matter went to the High Court of Delhi, by way of appeal, filed by Smt. Gian Devi Anand, widow of the deceased tenant, and the cross objections, were filed by the landlord, against the order of the Rent Control Tribunal. The Single Bench of this Court held that on the death of the statutory tenant, his heirs, had no right to remain in possession of the premises (non residential), as statutory tenancy was not heritable, and the protection afforded to a statutory tenant, by the Amending Act, in respect of residential premises, was not available to the heirs and legal representatives of the statutory tenant, in respect of commercial premises. The correctness of this view of the High Court was challenged by Smt. Gian Devi Anand, by Special Leave Petition.
(16) The contention, urged by the counsel for the landlord, before the Supreme Court, was that, by virtue of the Amendment Act, 1976 with retrospective effect, the heirs of the deceased tenant, specified in Section 2(l)(3), enjoyed the protection against eviction, during their life time, in the manner mentioned therein, provided the conditions, mentioned therein, were satisfied, only with regard to residential premises. It was also contended that, with regard to the residential premises, such limited protection essentially personal to the heirs, specified therein and to be enjoyed by them, in the manner laid down in sub Section was provided by the Amendment, but in respect of commercial premises, no such protection had been given. The views expressed in Damadial (supra), were approved by the Supreme Court. It was held :
“WE now proceed to deal with the further argument advanced on behalf of the landlords that the amendment to the definition of ‘tenant’ with retrospective effect introduced by the Delhi Rent Control Amendment Act (Act 18 of 1976) to give personal protection and personal right of continuing in possession to the heirs of the deceased statutory tenant in respect of residential premises only and not with regard to the heirs of the so called statutory tenant’ in respect of commercial premises, indicates that the heirs of so called statutory tenants, therefore, do not enjoy any protection under the Act. This argument proceeds on the basis that in the absence of any specific right created in favor of the so called statutory tenant in respect of his tenancy, the heirs of the statutory tenant who do not acquire any interest or estate in the tenanted permises, become liable to be evicted as a matter of course. The very premise on the basis of which the argument is advanced is, in our opinion, unsound. The termination of the contractual tenancy in view of the definition of tenant in the Act does not bring about any change in the status and legal position of the tenant, unless there are contrary provisions in the Act; and, the tenant notwithstanding the termination of tenancy does enjoy an estate or interest in the tenanted premises. This interest or estate which the tenant under the Act despite termination of the contractual tenancy continues to enjoy creates a heritable interest in the absence of any provision to the contrary. We have earlier noticed the decision of this Court in Damadilal’s case (supra). This view has been taken by this Court in Damadilal’s case and in our opinion this decision represents the correct position in law. The observations of this Court in the decision of the Seven Judge Bench in the case of V. Dhanapal Chettaiar v. Yesodai Ammal (supra) which we have earlier quoted appear to conclude the question. The amendment of the definition of tenant by Act 18 of 1976 introducing particularly Section 2(1)(iii) does not in any way mitigate against this view. The said sub Section (iii) with all the three Explanations thereto is not in any way inconsistent with or contrary to sub-Section (ii) of Section 2(1) which unequivocally states that tenant includes any person continuing in possession after the termination of his tenancy. In the absence of the provision contained in sub-Section 2(1)(iii), the heritable interest of the heirs of the statutory tenant would devolve on all the heirs of the ‘so called statutory tenant’ on his death and the heirs of such tenant would in law step into his position. This sub-Section (iii) of Section 2(1) seeks to restrict this right in so far as the residential premises are concerned. The heritability of the statutory tenancy which otherwise flows from the Act is restricted in case of residential premises only to the heirs mentioned in Section 2(1)(iii) and the heirs therein are entitled to remain in possession and to enjoy the protection under the Act in the manner and to the extent indicated in sub- Section 2(1)(iii). The Legislature which under the Rent Act affords protection against eviction to tenants whose tenancies have been terminated and who continue to remain in possession and who are generally termed as statutory tenants, is perfectly competent to lay down the manner and extent of the protection and the rights and obligations of such tenants and their heirs. Section 2(1)(iii) of the Act does not create any additional or special right in favor of the heirs of the ‘so called statutory tenant’ on his death, but seeks to restrict the right of the heirs of such tenant in respect of residential premises. As the status and rights of a contractual tenant even after determination of his tenancy when the tenant is at times described as the statutory tenant, are fully protected by the Act and the heirs of such tenants become entitled by virtue of the provisions of the Act to inherit the status and position of the statutory tenant on his death, the Legislature which has created this right has thought it fit in the case of residential premises to limit the rights of the heirs in the manner and to the extent provided in Sec. 2(1)(iii). It appears that the Legislature has not thought it fit to put any such restrictions with regard to tenants in respect of commercial premises in this Act.
We must, therefore, hold that Wasti Ram enjoyed the status of tenant of the premises in dispute even after determination of the contractual tenancy and notwithstanding the termination of the contractual tenancy, Wasti Ram had an estate or interest in the demised premises; and tenancy rights of Wasti Ram did not come to an end with his death but they devolved on the heirs and legal representatives of Wasti Rain. The heirs and legal representatives of Wasti Ram strap into his position and they are entitled to the benefit and protection of the Act. We must, accordingly, hold that the High Court was not right in coming to the conclusion that the heirs of Wasti Ram, the so called statutory tenant, did not have any right to remain possession of the tenanted premises and did not enjoy any protection under the Act. It appears that the High Court passed an order for eviction against the heirs of Wasti Ram only on this ground without going into the merits of the appeal filed by the appellant in the High Court against the order of remand and also without considering the cross objections filed in the High Court and we remand the case to the High Court for decision of the appeal and the cross objection merits. This appeal is accordingly allowed to the extent indicated above with no order as to costs.” In Damadilal and others (supra), their Lordship were interpreting Section 2(i) of the Madhya Pradesh Accommodation Control Act (41 of 1961) and the rights of statutory tenant. It was held :
“THE definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whole contractual tenancy still subsists. The incidents of such tenancy and a contractual tenancy must therefore be the same unless any provision of the Act conveyed a contrary intention. That under this Act such a tenant retains an interest in the premises not merely a personal right of occupation, will also appear from Section 14 which contains provision, restricting the tenant’s power of subletting.”
From this judgment it follows that incidents of statutory tenancy, were held to be the same, unless any provision of the Act conveyed a contrary intention.
(17) After the judgment of the Supreme Court in Gian Devi Anand (supra), the views held by this Court, that the statutory tenancy, in respect of commercial premises, was not heritable, no longer holds good. But, the definition of the term tenant, in relation to the residential permises, has not been affected. Rather, the constitutional validity of the definition of the tenant and the protection, though limited, and subject to certain conditions, given to certain classes of heirs, of the statutory tenant, in respect of residential premises, was upheld.
(18) Thus, in my view, the point raised by the appellants, with regard to the constitutional validity of the definition of the term tenant, does not require any further consideration, in view of the judgments, as mentioned above.
(19) I would like to point out another fact. The Caveators filed an affidavit to show, that none of the appellants were In occupation of the disputed property. Rather, they were all residing separately, in other accommodations, and the property in question was locked. For this reason also, in my view, the appellants cannot be allowed to raise this point.
(20) The second point, raised was, that in the judgment (Exhibit PWI/3), dated October 7, 1969, passed by the Rent Control Tribunal, Delhi, in RCA. No. 334 of 1968, in an earlier case, field by Shri Shiv Lal, predecessor- in-interest of respondents against, Smt. Laxmi Devi, and her son Shri Durga Prashad, there was a reference to the statement of Shri Shiv Lal, to the effect, that he had first let out the premises to Shri Sri Ram. Relying on this observation in the judgment, Mr. Tandon argued that, under law, after the death of Shri Sri Ram, all his sons and daughters inherited the tenancy, and not only Smt. Laxmi Devi.
(21) It may be noticed that this plea has been raised, for the first time, in the second appeal, which cannot be permitted. Moreover, there is no substance in the contention of Mr. Tandon. No such plea was raised in the written statement, filed by the appellants that Shri Sri Ram was the tenant, and after his death, they inherited the tenancy rights. On the other hand, their case in the written statement was that after the execution of the sale deed by the widow and other heirs of Shri Sri Ram, not only Smt. Laxmi Devi, but they were also accepted as tenants, and rent note dated July 24, 1962, was executed by them. Both the Courts below have disbelieved this assertion of the appellants, about their acceptance as tenants, other than Smt. Laxmi Devi.
(22) Even, in the grounds of appeal, no such plea has been taken. With regard to the reference to the statement of Shri Shiv Lal, that he bad first let oat the premises to Sh Sri Ram, it may be observed that the statement of Shri Shiv Lal was not filed. It is thus of no help to the appellants.
(23) In this regard, it will be useful to refer to the judgment (Exhibit PW1/5) of Avadh Bihari,J.in Sao No. 306 of 1969, titled Laxmi Devi and another v. Shiv Lal. In the earlier case Shri Shiv Lal sought the eviction of Smt. Laxmi Devi and her son, on the ground of non payment of rent. Against the order of the Rent Control Tribunal Delhi, Laxmi Devi and her son filed the second appeal. In his judgment dated July 18, 1975, Avadh Behari Rohtagi, J. held:
“I cannot accept this argument. On July 23. 1962, Lachhmi Devi sold half share of the property to Shiv Lal. Now Shiv Lal had the equity of redemption in respect of the entire building. It was open to him to create a tenancy in favor of Lachhmi Devi. Lachhmi Devi agreed to become a tenant under Shiv Lal. It was not open to her to say that she denies the title of the landlord. There is documentary proof to show the relationship of landlord and tenant. The cheques and the counter-foils prove that Lachhmi Devil became a tenant after the sale of her share in favor of Shiv Lal.”
(24) In the next place, it was argued by learned Counsel for appellants, that the sale of one half share of Shri Sri Ram (deceased) in the property, by his widow and sons, vide sale deed dated July 19, 1962, was without consideration, as the alleged sale was made for consideration, as referred to in the Dissolution Deed (Exhibit PW6/2), dated April 8, 1954. But, in the later Dissolution Deed (Exhibit D.5. W4/1), it was mentioned that the partnership continued, even after the execution of the Dissolution Deed dated April 8, 1954. According to Mr. Tandon, the Courts below have not properly construed these two Deeds, and the construction of the document, was a question of law, which could be raised in the second appeal. Whether, a person was a owner or not, is a question of fact. But, whether, the material evidence, if not considered of when documents not properly interpreted, then, the same become questions of law. Reference was made to the judgments in Chittoori Subbanna v. Kudappa Subbanna and others, ; Dalip Singh Arjan Singh v. Rakha Ram L. MunshiRam, ; Barham Dutt and others v. Peoples Cooperative Transport Society Ltd. New Delhi and others, and Rai Harendra Lal Roy Bahadur Estate Ltd. v. Hem Chandra Naskar and another .
(25) There is no controversy, with regard to the legal proposition. However, it may be noticed that the two Dissolution Deeds are not the title deeds. The reading of the two Deeds and the evidence led on the point, show that the contention of learned Counsel for appellants, is without any merits. The perusal of the Dissolution Deed, Exhibit PW6/2, reveals that Shri Shive Lal, Shri Sri Ram and Shri Bishamber Dayal, all brothers, were partners in the firm. The firm suffered losses and, it was agreed that Sh. Sri Ram would sell his one half share in the property in question to Shiv Lal, in consideration of an amount of ‘Rs. 21,000.00 , which was payable by Shri Sri Ram to two of the mortgagees. Both Shri Shiv Lal and Shri Sri Ram had mortgaged the entire property, for Rs. 30,000.00 , and the equity of redemption was mortgaged to another concern. Out of the total amount of Rs. 42,000.00 , payable to them, Rs. 21,000.00 was to be paid by Shri Sri Ram and Rs. 21,000/ by Shri Shiv Lal. Shiv Lal undertook to pay mortgage debt of the share of Shri Ram, also in consideration of an agreement to sell of his half share by Sri Ram to him. Further, it is mentioned that Shri Shiv Lal also undertook to pay Rs. 9,000.00 , regarding the share of losses of Shri Sri Ram In the firm. The total consideration for sale was thus Rs. 21,000.00 and Rs. 9,000.00 . This is in evidence that these amounts were mentioned in the books of accounts of the firm. A close reading of the subsequent dissolution deed dated August 10,1986, (Exhibit D5.W4/1) also shows that it was specifically mentioned therein that the entries, already made in the account books of the firm, were correct. The subsequent Dissolution Deed was written only to distribute certain licenses, which would be issued in the name of different partners of the dissolved firm. It is worthwhile to note that the entire mortgage amount of the share of Shri Sri Ram (deceased), was paid by Shri Shiv Lal only. The endorsement of these payments are contained in the original Mortgage Deed, Exhibit PW6/X.4 and Exhibit PW6/X.5. These payments also find mention in the judgment of the High Court, Exhibit PW1/5.
(26) The next point, raised by Mr. Tandon, was that there was no plea of ownership and adverse possession, made by respondents and in spite of this, the First Appellate Court held that respondents were owners by adverse possession. This argument is also to be repelled on the ground, that there was a registered Sale Deed, in favor of Shri Shiv Lal, executed by the widow and sons of Shri Sri Ram, which is Ext. PW6/3. Further, the Conveyance Deed was also executed regarding the land, under the said property by Municipal Corporation of Delhi, in favor of Shri Shiv Lal. Same is Exhibit PW6/4. On the basis of the evidence, the First Appellate Court came to the conclusion that besides, by virtue of the sale deed and Conveyance Deed, Shri Shiv Lal had become the owner of the property, by adverse possession. This is purely a question of fact.
(27) The other contention of Mr. Tandon was that the appellants were still the owners of the property in question.
(28) It may be noticed that Shri Brahm Prakash, appellant no. 7, had filed a suit in 1975, thereby, claiming a declaration that the sale deed dated July 19, 1962, executed by his mother Smt. Laxmi Devi, and the eldest brother Shri Durga Pershad, was not binding on him. The plaint of the suit is Exhibit PW6/X.2. All the other brothers and sisters of Shri Brahm Prakash (present appellants) were parties to the suit. The suit was dismissed as Shri Brahm Prakash failed to produce evidence, vide order dated December 23,1976, (Exhibit PW6/X. 1).
(29) Moreover, Shri Shiv Lal was held to be the owner of the property, in the earlier suit and Smt. Laxmi Devi as the tenant. Thus, there is no substance in the plea, as raised by Counsel for appellants.
(30) Another contention, urged before me, was that the premises were let out by Shri Shiv Lal for residential-cum-commercial purposes. In this regard, it is pointed out that in the original written statement, no such plea was taken by these appellants. However, after the judgment of the Supreme Court in Smt. Gian Devi Anand (supra) case, the appellants amended the written statement, so as to raise the plea, with regard to the purpose of letting out. i.e. residential-cum commercial. As the Courts below have held that the premises were let out only for residential purposes, so I reject this contention of the appellants.
(31) Mr. Tandon, also argued that the appellants were not only dependent on their mother Smt. Laxmi Devi, but, were residing with her in the premises, at the time of her death and, as such, they inherited the tenancy. In support of this contention, reliance was placed on the admission of Shri Shiv Lal, made before the trial Court. Both the Courts below have considered this part of the statement of Shri Shiv Lal and other evidence and came to the conclusion that none of the children of Smt. Laxmi Devi were financially dependent upon her, at the time of her death. This point raises purely a question of fact and, as such, cannot be allowed to be raised in the second appeal.
(32) Under the facts and circumstances of the case. appeal (R.S.A. No.125 of 1989) is dismissed in liming.