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Rajasthan High Court - Jodhpur

Sayari Devi & Ors vs Prakash Raj Ors on 31 May, 2011

Author: A.M.Sapre

Bench: A.M.Sapre

                                 1
     IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                         JODHPUR


                Civil Second Appeal No.86/2011
                       Sayari Devi & Ors.
                               Vs.
                       Prakash Raj & Ors.

Date of order                :             31.5.2011


                HON'BLE MR.JUSTICE A.M.SAPRE

Mr. A.S.Rathore, for the appellants.

<><><> This is a second appeal filed by the defendants under Section 100 of Civil Procedure Code against the judgment and decree dt 4.2.2011 passed by Additional District Judge, Bali in civil appeal No.34/05, which in turn arise out of judgment and decree dt 25.10.2005 passed by Civil Judge (JD), Desuri in civil suit No.5/2004.

2. By impugned judgment and decree, the first appellate court confirmed the judgment and decree passed by the trial court and in consequence while dismissing the defendant's first appeal upheld the judgment and decree passed by the trial court, which had decreed plaintiff's suit for eviction.

3. So the question that arise for consideration in this appeal is whether appeal involves any substantial question of law within the meaning of Section 100 of Code so as to empower this Court to admit this appeal on such question - that being the sin-qua-non for admission of the appeal?

Facts of the case are short.

4. The dispute is between the landlord and tenant and it relates to tenant's eviction from the suit accommodation. The appellant is a tenant (defendant), whereas the respondent 2 is the landlord (plaintiff).

5. The respondent (plaintiff) filed a suit out of which this second appeal arises against the appellant (defendant) for his eviction from the suit accommodation. The suit was filed essentially on the ground of arrears of rent. It was alleged that defendant (appellant) had failed to pay the monthly rent for the period in question and hence the respondent served him quit notice and determined his monthly tenancy before filing a suit as required under Section 106 of the Transfer of Property Act. The defence was that of denial and also of an assertion on the part of defendant that they had purchased the suit property. Parties adduced the evidence. The respondent (plaintiff) proved the quit notice, its service on the defendant and further proved the arrears of rent. The trial court accordingly decreed the suit and granted decree for eviction in plaintiff's favour and against the defendant in relation to the suit house. The defendant felt aggrieved filed an appeal. The first appellate court concurred with the finding of the trial court and while dismissing the appeal upheld the judgment and decree of the trial court. It is against this concurrent decree; the defendant has felt aggrieved and filed this second appeal.

6. It is a settled principle of law that concurrent finding of fact recorded by two courts below is binding on the second appellate court. Equally well-settled principal of law is that unless, such finding is found to be entirely against the pleadings or is found to be based on no evidence or is found to be recorded without taking into consideration the evidence on record or it is found to be against any provision of law or it is such that no judicial man of average acumen can ever record, it would bind the Second Appellate Court. In other words, it is only when the appellant is able to bring the case satisfying these criteria while challenging the finding, it would not be held binding despite being concurrent in nature.

Equally well settled principle of law is that second appellate court can not undertake the task of appreciation of oral evidence with a view to find out whether the finding recorded by the two courts was rightly recorded or not or whether some other finding could be recorded on such set of evidence on its appreciation or some other inference could be drawn and last but not the least, the second appellate court has to confine itself to the inquiry into the question as to whether appeal involves any insubstantial question of law within the meaning of Section 100 or not on the findings recorded by the courts below?

7. Coming to the facts of the case, it is not in dispute that State Rent Laws are not applicable to the area, where the accommodation in question is situated and hence the provisions of Transfer of Property Act govern this case. In other words, where the Rent laws do not apply to the accommodation then the plaintiff is only required to plead and prove that notice to determine the monthly tenancy was given and served on the defendant (tenant) strictly in accordance with the requirement of Section 106 of the Transfer of Property Act. In this case, two courts keeping in view this requirement did go into this question and categorically recorded a finding of fact that plaintiff served the quit notice on the defendant strictly in accordance with the requirement of Section 106 ibid and that defendant failed to prove his defence. In this view of matter, the suit for eviction on such finding was decreed.

8. In my opinion, I have not been able to notice any question of law much less substantial question of law in this appeal within the meaning of Section 100 ibid. It is apart from the fact that the finding being concurrent in nature on this material issue is binding on the second appellate court. The appellant failed to prove his case to the effect that contract of tenancy did not exist or that he has purchased the suit 4 property through his father or otherwise and that why and how the tenancy was not properly determined. On the other hand, the plaintiff was able to adduce evidence and he also duly proved by referring to his own evidence.

9. Appeal thus fails and is dismissed. However, taking into account all facts and circumstances of the case and the fact that defendant has been in possession. I grant appellant / defendant three months' time to vacate the suit accommodation from the date of this order, provided appellants' deposit entire arrears of rent together with the cost, if awarded on or before 15th July from the date of this order. The appellants shall also deposit three months' rent in advance by way of damages for use and occupation on or before 15th July and shall further submit an undertaking before the Executing Court duly supported by an affidavit that he shall vacate the suit accommodation on the expiry of three months from the date of this order. In case, if appellants comply with these conditions, the respondents will not execute the decree upto three months. Failure to comply, will entitles the respondents to execute the decree.

(A.M.SAPRE ),J.

/tarun/