Rajasthan High Court - Jaipur
Kanhiya Lal And Ors vs Ramesh Chand And Ors on 16 May, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 403/2008
1. Kanhaiya S/o Shri Kirori Kathumar, Distt. Alwar
2. Mahaveer S/o Kirori Kathumar, Distt. Alwar
----Appellants-Defendants
Versus
1. Ramesh Chand S/o Ram Dayal Mahajan, Barkheda,
Presently Residing At Mandawar, Distt. Dausa
-----Plaintiff-respondent
2. Babu Lal S/o Kirori Kathumar, Distt. Alwar
3. Ramesh Chand S/o Shri Kundan Khandelwal, Kathumar, Presently Residing At Surmi Garments, Shop No. 943, Sector 10, Yamika Road, Faridabad
4. Shiv Dayal S/o Shri Kundan Lal Khandelwal, Khatumer, Presently Residing At Manoj Garments, Main Market, Madanpur Khadar, Savida Vihar, New Delhi
5. Shashi Kant, Adopted S/o Shri Deen Dayal Khandelwal, Kathumar, Presently Residing At Surmi Garments, Shop No.943, Sector 10, Yamika Road, Faridabad
6. Smt. Ankuri Devi Wd/o Late Shri Deen Dayal Khandelwal, Khathumar, Alwar
7. Smt. Sarda, D/o Shri Deen Dayal W/o Shri Ram Niwas Khandelwal, Presently Residing At Khandelwal Garments, 28, Ormanium Street, Big Bazar, Calcutta
8. Smt. Savitri D/o Shri Deen Dayal W/o Ram Kishan Mahajan, Presently Residing At 8, Lic Colony, Gailana Road, Near Asopa Hospital, Agra
9. Smt. Manga D/o Deen Dayal W/o Mangtu Ram Mahajan, Laxmangarh
10. Smt. Geeta D/o Deen Dayal W/o Hari Babu Khandelwal, Presently Residing At House No. 2703, Sector 7A, Faridabad
11. Smt. Santosh D/o Deen Dayal W/o Raghuveer Khandelwal, Bombay Stores, Main Market, College Road, Variprada, Orissa
12. Smt. Sudha D/o Deen Dayal W/o Narain Khandelwal, Near Bihariji Temple, Opp. Police Station, Virndavan
13. Smt. Meena D/o Deen Dayal W/o Man Mohan Khandelwal, Presently Residing At Nand Chowk, Gokul, Mathura
----Proforma-respondents For Appellant(s) : Mr. Ajeet Kumar Sharma, Sr. Advocate assisted by (Downloaded on 18/05/2022 at 11:42:08 PM) (2 of 14) [CSA-403/2008] Mr. Rachit Sharma For Respondent(s) : Mr. Aatish Jain HON'BLE MR. JUSTICE SUDESH BANSAL Judgment Reserve On: 09/05/2022 Pronounced On: 16thMay, 2022 BY THIS COURT
1. Appellants-defendants have filed this second appeal invoking the jurisdiction of the High Court under Section 100 CPC assailing the judgment and decree dated 26.08.2008 in Appeal No.22/2006 passed by the Additional District Judge, Laxmangarh, Alwar affriming the judgment and decree for eviction and recovery of rent dated 31.07.2006 in Civil Suit No.76/2002 passed by the Civil Judge (Junior Division), Kathumar, District Alwar.
2. The dispute between parties is in relation to an immovable property comprising double storey haveli and a nohra situated at town Kathumar, District Alwar. The respondent No.1 is plaintiff. Both appellants and resondent No.2 are defendants No.1, 2 and 3 before the trial court. The respondents No.3 to 13 were defendants No.4 to 14 before the trial court. The suit has been contested by defendants No.1 and 2 only, who are appellants herein. The status of parties shall be referred hereinafter in the manner as they were called before the trial court.
3. The relevant facts of the case may be recapitulated as under:
(3.1) Plaintiff filed a civil suit claiming possession and rent of the suit property against the defendants, on 15.11.2002. It has been averred that defendants No.1, 2 and 3 are relatives of plaintiff to whom the suit property was let out for residential (Downloaded on 18/05/2022 at 11:42:08 PM) (3 of 14) [CSA-403/2008] purposes in the year 1975 at the rate of Rs.150/- per month. The tenancy is said to be oral. Later on, from January 1990, rent has enhanced at the rate of Rs.300/- per month. The defendants-
tenants paid rent to the plaintiff upto July, 2002, but have committed default from August, 2002 onwards. It has been averred that plaintiff needs the suit property for his sons and family but the defendants No.1, 2 and 3 are not agreeable to vacate and hand over the suit property to the plaintiff.
(3.2) Plaintiff claimed to terminate the tenancy of defendants by issuing a registered notice dated 18.10.2002, asking defendants to vacate the suit property and pay arrears of rent and mesne profits.
(3.3) Plaintiff has stated in the plaint that the suit property was earlier belonging to one Kundan Lal S/o Nand Kishore Khandelwal R/o Kathumar. Intially, Shri Kundan with his eleder son Deen Dayal mortgaged the suit property to Defendants No.2 and 3 for a sum of Rs.3,500/- through registered mortgage deed dated 08.04.1960. It may be noted here that at that time on 08.04.1960, one of the mortgagee appellant-defendant No.2 Mahaveer was minor, hence this deed is void as observed by both courts below. It was averred that mortgagee vacated the possession and this mortgage deed has come to an end after redemption of the mortgaged property which is mentioned in subsequent mortgage deed dated 11.06.1973, also.
(3.4) Plaintiff averred that thereafter, Kundan Lal passed away and his three sons, namely, Ramesh Chand, Shiv Dayal and Deen Dayal, mortgaged the suit property in favour of plaintiff for a sum of Rs.6,000/- through registered mortgage deed dated (Downloaded on 18/05/2022 at 11:42:08 PM) (4 of 14) [CSA-403/2008] 11.06.1973, and hand over the possession of the suit property to plaintiff. In this mortgage deed dated 11.06.1973, it clearly mentioned of previous mortgage deed dated 08.04.1960 has come to an end. The mortgagors do not dispute this fact. This mortgage deed dated 11.06.1973 was made for a period of eight years. It was agreed between parties that in case mortgagors would remain failed to pay the mortgaged money and to get redeem the mortgaged property within a period of eight years, the property shall be treated to be released in favour of mortgagee, who is the plaintiff. The plaintiff let out the mortgaged property to defendant Nos.1 to 3, in the year 1975 and handed over the possesssion to them. Thereafter, the mortgagors instituted a civil suit on 19.05.1989 for redemption of mortgage and possession, but mortgaged money was not paid and mortgaged properties never redeemed and suit was dismissed in default on 23.01.2001. As per terms of mortgage deed, plaintiff became owner of the mortgaged properties, to which mortgagors do not dispute. (3.5) The plaintiff, acquiring status of owner of suit property and being landlord of defendant Nos.1 to 3, filed the present suit for eviction claiming possession of the suit property from defendant Nos.1 to 3, who were inducted as tenants by him. Defendants No.4 and 5 Ramesh Chand and shiv dayal are the original mortgagors and defendant Nos.6 to 14 are the natural heirs of third mortgagor Deen Dayal.
4. Out of defendants No.1, 2 and 3, only defendants No.1 and 2 submitted written statement, stating therein that in fact they got the possession of the suit property under the mortgage deed dated 08.04.1960 and claimed that the mortgage deed dated (Downloaded on 18/05/2022 at 11:42:08 PM) (5 of 14) [CSA-403/2008] 08.04.1960 is valid and still in force. Defendants No.1 and 2 contended that the mortage deed dated 11.06.1973, made in favour of plaintiff, is ostentatious document, which was executed with the connivance and because of inter se conflict between the defendants No.2 Mahaveer and defendant No.3 Babu Lal. Defendant No.3 Babu Lal, did not contest the suit and did not dispute the mortgage deed dated 11.06.1973. The defendants No.1 and 2, although have not denied the execution of the registered mortage deed dated 11.06.1973 in favour of plaintiff, but have claimed that this mortgage deed is an ostentatious and sham document, it may be noticed that defendants No.1 and 2 have neither filed any suit nor have made any counter claim seeking declaration to the effect that the registered mortgage deed dated 11.06.1973 is an ostentatious and sham document and to prove that this mortgage deed was executed and refuted out of connivance and conflict inter se between the parties. (4.1) Defendants No.1 and 2 denied the relationship of landlord and tenant with the plaintiff and claimed their possession as mortgagee in pursuance of previous mortagage deed dated 08.04.1960 and finally prayed to dismiss the suit for rent and eviction.
(4.2) The defendant No.3 did not file any written statement. (4.3) Defendants No.4 to 14, who are original mortgagors and legal representatives of one of the mortgagor of the registered mortgage deed dated 11.06.1973 did not file any written statement and accepted the mortgage deed dated 11.06.1973 made and executed in favour of the plaintiff. (Downloaded on 18/05/2022 at 11:42:08 PM)
(6 of 14) [CSA-403/2008] (4.4) It is worthy to take note that mortgagors also filed a
civil suit on 19.05.1989 for redemption of the suit property from the registered mortage deed dated 11.06.1973. In this civil suit for redemption, the plaintiff and his tenants in the mortgaged properties i.e defendants No.1 to 3, herein, were made party as defendants. Proceedings of civil suit were commenced and the same reached to the stage of recording the plaintiff's evidence. At this stage the civil sut was dismissed on 25.03.2001 due to "no instructions" pleaded by counsel for mortgagors, the plaintiffs therein. There is nothing on record that the present defendants No.1, 2 and 3, who were party in this civil suit for redemption of mortgage, ever claimed that the mortgage deed dated 11.06.1973 is an ostentatious and sham document as such the same cannot be redeemed or pursued their such claim, after dismissal of suit.
5. Accordingly to respective pleadings of the plaintiff and defendants No.1 and 2 the trial court framed issues and recorded evidence of both parties.
6. In relation to issue Nos.1 and 2 it was observed that through registered mortgage deed dated 11.06.1973, plaintiff got the possession of the suit property and since the mortgagors remain failed to repay the mortgaged money and to get redeem mortgage property, the right of plaintiff to enjoy the party became absolute. As far as, defence of defendant Nos.1 and 2 alleging the registered mortgage deed dated 11.06.1973 as an ostentatious and sham document, this was not found proved.
7. In relation to the previous mortgage deed dated 08.04.1960, it was observed, that one of the mortgagee appellant-defendant No.2 Mahaveer was admittedly minor at the time of execution of (Downloaded on 18/05/2022 at 11:42:08 PM) (7 of 14) [CSA-403/2008] mortgage deed, hence the contract of mortgage deed becomes void and as such the mortgage deed itself was treated as void. That apart, in the mortgage deed dated 11.06.1973, there is a clear mention that the previous mortgage deed dated 08.04.1960 has come to an end and the mortgaged property has been got redeemed.
8. The trial court decided the issue No.4 and 5 in favour of plaintiff recording the finding of fact that the suit property was let out by the plaintiff by way of oral tenancy to the defendant Nos.1 to 3 in the year 1975 at the rate of Rs.150/- per month and thereafter rent was increased to Rs.300/- w.e.f. January, 1990. Defendants-tenants were found defaulter in payment of rent after July, 2002.
9. The trial court decided the issue No.7 in favour of plaintiff recording findings of fact that the tenancy of defendants has been terminated by the plaintiff vide notice dated 18.10.2002 (Ex.7). It was observed that defendants have admitted the receipt of notice for termination of tenancy sent by plaintiff but they did not reply the same.
10. The trial court, on consideration of the respective pleadings and material available on record found that the defendant Nos.1 and 2 could not prove their possession in the suit property pursuant to the previous mortgage deed dated 08.04.1960 rather it has been proved that the plaintiff came in possession of the suit property by virtue of the registered mortgage deed dated 11.06.1973. The status of of defendants was treated as tenants, and since the tenancy has been terminated by issuing a registered notice, the decree, for possession and recovery of rent at the rate (Downloaded on 18/05/2022 at 11:42:08 PM) (8 of 14) [CSA-403/2008] of Rs.300/- from month of August 2002 till handing over the vacant possession, was passed in favour of plaintiff and against defendants.
11. Aggrieved with the judgment and decree dated 31.07.2006 the defendants No.1 & 2 preferred first appeal. The first appellate court, reheard the matter as a whole & re-appreciated the evidence on record, thereafter finding no illegality or perversity, affirmed the judgment dated 31.07.2006 passed by the trial court and dismissed the first appeal vide judgment dated 26.08.2008, hence this second appeal.
12. Heard learned counsel for both parties and perused the material available on record.
13. Appellants have heavily placed reliance on the document of registered mortgage deed dated 08.04.1960 (Ex.3). This doucment was executed by Kundan Lal and his son Deen Dayal in favour of Mahaveer and Babu Lal. As per document itself, the Mahaveer was minor at that time. Mahaveer was defendant No.2 and appellant herein. Mahaveer himself appeared as DW.1, and admits that he was minor of 15 years age at the time of mortgage deed dated 08.04.1960. The trial court and the first appellate court has observed that the mortgage is a contract and when one party is minor, the contract becomes void as such this mortgage deed dated 08.04.1960 is not a legal document but is a void document. Such findings are well within parameters of law and correct as per Section 11 of the Contract Act. As far as, another mortgagee Babu Lal is concerned, he has not preferred any appeal pressing this document in his favour. He admits that this mortgage deed comes to an end and mortgaged property was redeemed. (Downloaded on 18/05/2022 at 11:42:08 PM)
(9 of 14) [CSA-403/2008] Babu Lal is one of the signatory to the subsequent mortgage deed dated 11.06.1973 (Ex.4). The subsequent mortgage deed was executed after the death of Kundan Lal by his three sons including Deen Dayal in favour of present plaintiff. As per the evidence on record, it has been observed that appellants could not prove their possession over the suit property pursuant to and in continuation of the mortgage deed dated 08.04.1960. It is also not disputed that the appellants do not dispute the execution of registered mortgage deed dated 11.06.1973 in favour of plaintiff, however, have taken a defence that this registered mortgage deed dated 11.06.1973 is an ostentatious and sham document. Neither any evidence has been adduced nor any suit or counter claim was filed by the appellants to challenge the registered mortgage deed dated 11.06.1973 and for seeking declaration that this document is an ostentatious and sham document. The trial court and the first appellate court has observed that plaintiff got possession of the suit property through the registered mortgage deed dated 11.06.1973. It was also taken into consideration that the civil suit filed for redemption of the registered mortgage deed dated 11.06.1973 has been dismissed on 23.01.2001. It has been observed that as per the term of mortgage deed, after eight years, the right of plaintiff becomes absolute to enjoy the suit property. Thus, findings recorded by the trial court and first appellate court in relation to issue Nos.1 & 2 are based on appreciation of evidence and provisions of law. Such findings do not suffer from any perversity or misreading/non-reading of evidence.
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14. The judgment of Hon'ble the Supreme Court in case of Mathai Mathai Vs. Joseph Mary & Ors. [(2015) 5 SCC 622] can be referred in support of such findings discussed hereinabove. The Hon'ble Supreme Court, in the judgment, placing reliance on the decision of Privy Council in Mohori Bibee Vs.Dharmodas Ghose [ ILR (1903) 30 Cal. 539] has clearly held as under:-
"As per the Contract Act, 1872, it is clearly stated that for an agreement to become a contract, the parties must be competent to contract, wherein the age of majority is a condition in competency. A deed of mortgage is a contract and it cannot be held that a mortgage in the name of a minor is valid simply because it is in the interest of the minor unless minor is represented by a natural guardian or guardian appointed by the Court. The law cannot be read differently for a minor who is a mortgagor and a minor who is a mortgagee as there are rights and liabilities in respect of immovable property. The issue flow out of such contract on both of them. Therefore, it is held that the mortgage deed, Ex.A-1 is void ab initio in law and the appellant cannot claim any right under it. "
15. As far as, findings in relation to issue Nos. 4 & 5 are concerned, both courts have recorded findings of fact after appreciation of evidence of both parties that the plaintiff let out the suit property to defendant Nos.1 & 2 early in the year 1975 at the rate of Rs.150/- per month, later on the rent was enhanced to Rs.300/- per month. Defendants have been found defaulter in payment of rent from August, 2002. While deciding the issue No.7, it has been found that the tenancy of the defendants has been terminated by the legal and registered notice dated 18.10.2002 (Ex.P-7), issued by the plaintiff to defendants. (Downloaded on 18/05/2022 at 11:42:08 PM)
(11 of 14) [CSA-403/2008] Appellants-defendants admit the receipt of notice. Thus, where the trial court and the first appellate court have recorded findings of fact that the defendants are tenants of the plaintiff and their tenancy has been terminated through a lawful and valid notice, such findings of fact are not required to be interfered with by the High Court in this second appeal.
16. Hon'ble the Supreme Court in case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gurjar [(1999) 3 SCC 722] has held that the concurrent findings of facts even if erroneous cannot be disturbed by the High Court in exercise of powers under Section 100 CPC. This proposition is well established.
In Para No.5 of Kondiba Dagadu Kadam (supra) the Supreme Court has observed as under:-
"5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of (Downloaded on 18/05/2022 at 11:42:08 PM) (12 of 14) [CSA-403/2008] pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence."
17. The ratio decidendi propounded by the Hon'ble Supreme Court in case of Kondiba Dagadu Kadam (supra) has been followed in umpteen numbers of cases. In case of Thulasidhara & Anr. Vs. Narayanappa & Ors. [(2019) 6 SCC 409], on the scope of interference with the findings of fact under Section 100 CPC, the Supreme Court opined that while interfering with the judgment and decree passed by both courts below, the High Court has again re-appreciated the entire evidence on record, which in exercising of powers under Section 100 CPC is not permissible. The High Court exceeded in its jurisdiction, while exercising the powers under Section 100 CPC.
In another case of C. Doddanarayana Reddy (Dead) By Lrs. & Ors. Vs. C. Jayarama Reddy (Dead) by Lrs. & Ors. [(2020) 4 SCC 659], while dealing with the scope of Section 100 CPC, the Supreme Court held that though the High Court could have taken a different view acting as a trial court but once, two courts written a finding which is not based upon any misreading of material documents, nor against any provisions of law and neither it be said that any judge acting chiefly and reasonably could not have reached such findings, than the court cannot be said to be erred.
18. The present case is a case of concurrent findings of fact even if erroneous cannot be disturbed in exercise of powers under (Downloaded on 18/05/2022 at 11:42:08 PM) (13 of 14) [CSA-403/2008] Section 100 CPC as has been held in umpteen number of cases and catena of other judgments passed by Hon'ble Supreme Court in case of Pakeerappa Rai Vs. Seethamma Hengsu & Ors., [(2001) 9 SCC 521], Thulasidhara & Anr. Vs. Narayanappa & Ors., [(2019) 6 SCC 409], Bholaram Vs. Ameerchand, [(1981) 2 SCC 414], Ishwar Das Jain Vs. Sohan Lal, [(2000) 1 SCC 434] and State of Madhya Pradesh Vs. Sabal Singh & Ors., [(2019) 10 SCC 595].
19. The substantial questions of law as proposed by appellant- plaintiff are essentially questions of fact which requires re- appreciation of evidence. Re-appreciation of evidence is not permissible within scope of Section 100 of CPC, unless and until there is some illegality or perversity in findings of impugned judgments. None of the question of law, as proposed in the memo of appeal, falls within purview of substantial question of law. In order to exercise the scope of Section 100 of CPC, involvement/formulation of substantial question of law is sine qua non.
20. After the discussion made hereinabove, since no substantial question of law has been found involved in the present second appeal, the same is not liable to be entertained and accordingly, this second appeal is hereby dismissed.
21. Stay application and any other pending application(s), if any, also stand(s) disposed of.
22. There is no order as to costs.
(SUDESH BANSAL),J
Sachin
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