Rajasthan High Court - Jaipur
Gauri Shanker And Ors vs Keshar Dev on 11 April, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 432/1996
Gauri Shanker S/o Shri Gopal Ram aged about 54 years, at
present resident at Pilani.
(Died During Pendency of Appeal)
1/1. Smt. Lalita Devi W/o Shri Late Shir Gori Shankar
aged about 50 yrs, r/o behind Chirawa College, Chirawa,
Jhunjnu. (Deleted on 10-11-2016)
1/2. Rachna Devi W/o Shri Ashok Kumar D/o Late Shri
Gori Shankar aged about 34 yrs, r/o behind Chirawa
College, Chirawa, Jhunjhnu.
1/3. Sarita Devi W/o Shri Vijay Kumar D/o Late Shri Gori
Shankar aged about 32 yrs, r/o behind Chirawa College,
Chirawa, Jhunjhnu.
1/4. Ajay S/o Late Shri Gori Shankar aged about 30 yrs,
r/o behind Chirawa College, Chirawa, Jhunjhnu.
1/5. Sanjay S/o Late Shri Gori Shankar aged about 28 yrs,
r/o behind Chirawa College, Chirawa, Jhunjhunu.
2. Ramakant S/o Shri Gopi Ram, r/o Pilani.
--Defendant-Appellants
Versus
Keshar Dev S/o Shri Panna Lal, r/o Mewtan Marg, Pilani, District
Jhunjhunu.
----Plaintiff-Respondent
For Appellant(s) : Mr. B.L. Agarwal
Mr. Akash Gupta
For Respondent(s) : Mr. A.K. Pareek
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
JUDGMENT RESERVED ON : 01/04/2022
JUDGMENT PRONOUNCED ON : April _11th_, 2022
BY THE COURT:
1. Appellants-Defendants-Tenants (hereinafter referred as "Defendants") have preferred this second appeal under Section 100 CPC, assailing judgment and decree dated 17-8-1996 in (Downloaded on 12/04/2022 at 09:11:33 PM) (2 of 11) [CSA-432/1996] Appeal No.9/1996 (16/1995), passed by Additional District Judge, Jhunjhunu dismissing appeal and affirming the judgment and decree dated 21-4-1995 passed by Civil Judge (Lower Division) Chirawa, in Civil Suit No.70/1981 whereby plaintiff's suit for eviction from tenanted shop and recovery of rent has been decreed.
2. The facts of case are that rented premises is a shop, which was admittedly let out orally by plaintiff way back on 7-7-1973 at the rent of Rs.35/- per month. The tenancy was oral. According to plaintiff shop was let out to defendant No.1, who further sublet it to defendant No.2 in the year 1977. Plaintiff alleged that defendant No.1 stopped to pay rent from June,1976 and committed default in payment of rent. The defendant No.2 was in service at BITS Pilani and the shop remained closed for near about three years. Some material alteration was also alleged in rented shop. Plaintiff issued a legal notice on 2-3-1977 asking the defendant to vacate rented shop and to pay due rent and charges of electricity. Finally plaintiff filed eviction suit invoking provisions of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter `the Rent Act') on 19-11-1981.
3. Defendant No.1 filed written statement and denied any tenancy with the plaintiff and stated that he was residing in Pilani itself. He also denied for any shop in Jaipur. It was further stated that after leaving the job defendant No.2 obtained the shop in question on rent and started business of cycle parts, repairing, general store, furniture, stationary, and after July 1973 he is doing the business in the shop. He denied the allegation of subletting to defendant No.2. He denied the allegation of material alteration in (Downloaded on 12/04/2022 at 09:11:33 PM) (3 of 11) [CSA-432/1996] shop in question. Notice dated 2-3-1977 was wrongly sent to defendant No.1, to which he replied that he was not tenant. In additional pleas, he raised the issue of misjoinder of party.
4. Defendant No.2 filed separate written statement and stated that there was no tenancy with defendant No.1 and he was wrongly impleaded in suit, and the tenancy was with defendant No.2 from 7-7-1973. He denied for any due rent. In additional pleas he stated that the plaintiff wanted to increase rent as Rs.100/-, to which defendant No.2 denied, therefore the false suit was filed. He further stated that rent from 1-6-197 to 31-12-1976 was deposited in court. On disconnection of electricity, the SDM Jhunjhunu vide order dated 31-5-1982 directed for electricity connection in tenanted shop.
5. On basis of pleadings of parties, the trial court framed eight issues. Plaintiff examined four witnesses and exhibited documents. Defendants also examined four witnesses and exhibited documents.
6. Considering evidence of witnesses of both sides and exhibited documents the trial court came to the conclusion that the tenancy between parties is oral and on appreciation of statements of Pw.1 to Pw.4 it stands clear that shop was let out to defendant No.1 on 7-7-1973, at that point of time defendant No.2 was in service at BITS Pilani. Later on after his retirement the defendant No.1 handed over possession of rented shop to defendant No.2. The trial court recorded a finding of fact that defendant No.1 sublet the rented shop to defendant No.2, who is a sub-tenant. Findings in relation to transfer of possession of rented shop by defendant No.1 to defendant No.2 for a (Downloaded on 12/04/2022 at 09:11:33 PM) (4 of 11) [CSA-432/1996] consideration without permission of plaintiff landlord have been record. Since defendant No.2 made a specific plea that rented shop was let out by plaintiff to him, therefore, the onus stands shifted upon defendant No.2. Defendants No.1 and 2 both adduced their respective evidence, but remained fail to produce sufficient evidence to prove that the rented shop was let out to defendant No.2 and not defendant No.1. The defendant No.2 sought to rely upon rent receipts Ex.A-2 to Ex.A-6, which were not found proved in absence of signatures of plaintiff. Other evidence of defendant No.2 Bahis, alleged to be maintained by him, was not produced on record, therefore, conclusion of the trial court on the issue of subletting is based on appreciation of evidence available on record and by drawing lawful adverse inference in given facts and circumstances of the case.
Documents submitted by defendant No.2 of sending Money Order (Ex.A-8), depositing rent in court of SDM (Ex.A-9) were found insufficient to declare him as tenant being unilateral documents. The trial court further found that shop remained closed for continuous period of six months prior to filing of suit on 9-11-1981, thus, the ground of non-user of rented shop without reasonable cause was also found proved. The issue of default and material alteration were not found proved. Accordingly, the trial court vide judgment dated 21-4-1995 passed decree for eviction on the ground of subletting and non user as enshrined in Section 13(1)(e) and (j) of the Rent Act.
7. First appeal by appellants challenging findings of the trial court and eviction decree, was heard and decided on merits. The first appellate court re-heard entire subject matter and on re- (Downloaded on 12/04/2022 at 09:11:33 PM)
(5 of 11) [CSA-432/1996] appreciation of evidence affirmed findings of subletting and non- user and dismissed the appeal vide judgment dated 17-8-1996.
8. Hence, against concurrent findings of facts on both issues of subletting and non-user of rented shop, appellants have preferred this second appeal under Section 100 CPC.
9. After filing of second appeal, appellants have filed an application under Order 41 Rule 27 CPC for producing statements of plaintiff recorded in another civil suit on 22-1-1997, to prove that plaintiff admitted the defendant No.2 as his tenant in rented shop in question. In another civil suit filed against a different tenant Vimal Kumar, statements of plaintiff were recorded after passing eviction decree in present suit and affirmation of the same in first appeal. A reading of statements of the plaintiff as a whole does not lead to the conclusion that the plaintiff has admitted the defendant No.2 as his tenant in the rented shop in question, but it was in the sense that defendant No.2 was in possession of the rented shop, certainly as sub-tenant. Thus, considering the context and surrounding circumstances, subsequent statements of plaintiff, in another suit, do not vitiate findings of fact on the issue of subletting recorded by two courts below. However, this court accepting the application under Order 41 Rule 27 CPC, vide order dated 3-9-2004 framed following substantial questions of law:-
(i) Whether the findings of the two courts below are perverse with regard to decision that the defendant Ramakant was the tenant and not the defendant NO.2 Gouri Shankar?
(ii) If the defendant appellant No.1 Gouri Shanker is held to be tenant, whether a decree of eviction may be passed on the ground of non-use of the shop by Gouri Shanker?(Downloaded on 12/04/2022 at 09:11:33 PM)
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10. During course of this second appeal, respondent plaintiff has moved and application supported with affidavit way-back on 20-5-
2005 mentioning that the shop in question was not being used by appellants hence its structure has wholly damaged, roof and walls of the shop have collapsed being old and in dilapidated condition. Certificate of Municipal Board Pilani dated 20-11-1991 and photographs of shop in question were placed on record to prove the actual position of the shop. Appellants have not filed any counter application. Thus, a reasonable presumption arose that appellants are not in use and occupation of the rented shop in question as the same has turned into a dilapidated and collapsed position.
11. Heard learned counsel for parties and perused impugned judgment passed by the trial court as affirmed by the first appellate court, as also the record of the case.
12. Counsel for appellants have argued that findings of fact recorded by two courts below on the issue of subletting and non user are perverse and contrary to material available on record. He placed reliance on on rent receipts, deposition of rent before the court and the order of SDM seeking permission for electricity connection in shop in question. He submitted that two courts below have drawn a wrong conclusion and recorded wrong findings of fact that shop was let out to defendant No.1, who sublet the same to defendant No.2. He submitted that in fact defendants No.1 and 2 are real brothers and shop in question was in tenancy of defendant No.2. He submitted that findings on the issue of non-user is self contradictory to findings of subletting. He (Downloaded on 12/04/2022 at 09:11:33 PM) (7 of 11) [CSA-432/1996] submitted that both substantial questions of law deserve to be decided in favour of appellants, more particularly, having considered statements of the plaintiff recorded on 22-1-1997 in another suit, which has been placed on record along with application under Order 41 Rule 27 CPC. Reliance has been placed on Kochukakkada Aboobacker Vs. Attah Kasim [(1996)7 SCC 389], wherein the Apex court held that when trial court and first appellate court not considering relevant documents in proper perspective the High court can interfere with concurrent findings, and on WADI Vs. Amilal [2002 WLC (SC) Civil 726], wherein the Apex Court held that "appellate court must allow additional evidence, if such document throw light on germane issue."
13. Per contra, counsel for respondent landlord filed written submissions and supporting impugned judgments has submitted that findings recorded by two courts below are based on due appreciation of evidence on recorded. The additional evidence i.e. statement of plaintiff recorded on 22-1-1997 in another suit, does not render any support to appellants, and the plaintiff's evidence in another suit subsequent to passing of eviction decree and affirmation of the same by first appellate court are not conclusive and the same do not lead any inference against the plaintiff. He further submitted that the shop in question has collapsed in dilapidated condition, however, the appellants have not pursued their appeal on merits malafidely and with ulterior motive. Substantial questions of law, on the strength of re-appreciation of evidence, do not fall within the ambit of substantial question of law.
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14. This court finds that this is a case of oral tenancy, where plaintiff from his evidence has proved that the shop in question was let out to defendant No.1 at the rent of Rs.35/- per month on 7-7-1973. Further the plaintiff has proved that defendant No.1 did sublet the shop in question by transferring its possession to defendant No.2 in the year 1977. Such findings of fact are based on statements of plaintiff Pw.1 and his witnesses Pw.2, Pw.3 and Pw.4. It was also proved that at the time of letting out the shop in question in 1973 to defendant No.1, the defendant No.2 was in service in BITS Pilani. Subsequent to retirement of defendant No.2 from BITS Pilani, he came in possession of the shop in question in the year 1977. On the specific plea of defendant No.2 that the shop in question was let out to him, the trial court found that the defendant No.2 failed to produce cogent and convincing evidence to prove this fact. The documents rent receipts Ex.A2 to Ex.A-6, rent deposited before the court, and order of SDM for electricity connection, and reply to notice, on which defendant No.2 placed reliance were found insufficient to establish that shop in question was let out to defendant No.2 in 1973. This fact has also come on record that defendant No.1, to whom shop in question was let out was not use and occupation of the shop at the time of filing suit. Thus, the transfer of possession of the shop in question stands undoubtedly proved. Another ingredients of payment of rent/ raising any benefit is a silent contract between defendants No.1 and 2 for which a reasonable inference can be drawn, as has been observed by both courts below. Defendant No.2 happens to be brother of defendant No.1, does not make any difference for adjudicating the issue of subletting, when the plaintiff's case was (Downloaded on 12/04/2022 at 09:11:33 PM) (9 of 11) [CSA-432/1996] that shop in question was let out to defendant No.1. Thus, both courts below has considered necessary ingredients to decide the issue of subletting and passed a decree of eviction on the ground of subletting. Concurrent findings on the issue of subletting do not suffer from any infirmity, perversity or jurisdictional error.
Apart from the issue of subletting, the issue of non-user of shop in question by appellants has also been concurrently decided by two courts below against defendants. Additional evidence produced by appellants is of no help. As statements of plaintiff recorded in another case after passing of eviction decree in present case and affirmation of the same by first appellate court, does not render findings of eviction decree as perverse. Otherwise also, subsequent statements of plaintiff do not lead any inference that shop in question was let out to defendant No.2 in the year 1973. The context of statements of plaintiff as a whole does not lead to such a conclusion. Thus, additional evidence does not throw any light on the germane issue involved herein and the same is not of any help.
The judgments Kochukakkada Aboobacker Vs. Attah Kasim (supra) and WADI Vs. Amilal (supra) do not render any help to appellants in given facts and circumstances of the case.
15. Both courts below have come to a concurrent finding that the defendant No.1 was tenant of plaintiff and he sublet the shop to defendant No.2. Therefore, the appellate court found the first appeal to be devoid of merits. Consequently the decree passed by the trial court was upheld by the appellate court. Counsel for defendants have not been able to prove their case or to point out any perversity or make out any substantial question of law in (Downloaded on 12/04/2022 at 09:11:33 PM) (10 of 11) [CSA-432/1996] respect of the judgment and decree passed by the trial court as also the appellate court. The conclusions of the courts below are based on findings of fact. The Hon'ble Supreme Court in the case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar [(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 the powers under section 100 CPC. This proposition is well established. Findings of fact based on appreciation of evidence are the province of the trial court and the first appellate court.
16. In case of Umerkhan Vs. Bismillabi [(2011)9 SCC 684] Hon'ble Supreme Court has propounded that if a second appeal is admitted on substantial question of law, while hearing second appeal finally, can re-frame substantial question of law or can frame substantial question of law afresh or even can hold that no substantial question of law involved, but the High Court cannot exercise its jurisdiction of Section 100 CPC without formulating substantial question of law. Further in case of Damodar Lal Vs. Sohan Devi [(2016)3 SCC 78] the Apex Court held that even if finding of fact is wrong, that by itself will not constitute a question of law. The wring finding should stem out of a complete misreading of evidence or it should be based only on conjectures and surmises. The safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity.
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17. Consequently, the second appeal is without any force and the same stands dismissed.
18. Stay application and any other pending application(s), if any, also stand(s) disposed of.
19. Record of courts below be sent back forthwith.
(SUDESH BANSAL),J Arn/73 (Downloaded on 12/04/2022 at 09:11:33 PM) Powered by TCPDF (www.tcpdf.org)