Rajasthan High Court - Jaipur
Nandlal S/O Shri Surajmal vs Abdul Hamid (Since Deceased) Through ... on 7 November, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 159/2019
Nandlal S/o Shri Surajmal, Resident Of Mohalla Mochiwada, Ward
No. 34 Sikar, Tehsil And District Sikar
----Appellant-defendant
Versus
1. Abdul Hamid (Since Deceased) Through Legal Heirs:-
1/1. Mehrunisha W/o Late Abdul Hamid, Resident Of Fatehpur
Road, Ward No. 44, Near Akbari Masjid, Sikar
1/2. Abid S/o Late Abdul Hamid, Resident Of Fatehpur Road,
Ward No. 44, Near Akbari Masjid, Sikar
----Respondents-plaintiffs
For Appellant(s) : Mr. Amit Singh Shekhawat
For Respondent(s) : None
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
07/11/2022
1. Appellant-defendant-tenant has preferred this second appeal under Section 100 CPC, challenging the decree for eviction passed in respect of his rented shop on the ground of bonafide and reasonable necessity by the Court of Additional District Judge No.4, Sikar in first appeal No.24/2015 vide judgment dated 2.2.2019 and resultantly, the judgment and decree dated 13.3.2015 passed in civil suit No.65/2002 by the Court of Additional Senior Civil Judge, Sikar dismissing plaintiff's suit for eviction, has been set aside.
2. Heard counsel for appellant at length and perused the record.
3. In the instant case, it is not in dispute that shop in question situated at Mochiwada Raod, Sikar is in tenancy of appellant- (Downloaded on 11/11/2022 at 09:13:29 PM)
(2 of 6) [CSA-159/2019] defendant since 1960. Respondents-plaintiffs purchased the suit shop through registered sale deed dated 21.8.2002 along with whole property wherein shop in question is situated, from its owner and landlord of appellant namely Kishan Lal. Appellant- defendant does not dispute that the transfer of his tenanted shop to respondent-plaintiff through registered sale deed dated 21.8.2002 and attorn respondent-plaintiff as his landlord and continue to pay the rent to him. After purchasing the property, the respondent-plaintiff instituted civil suit after eviction, invoking provisions of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter "the Act of 1950"). The suit was instituted seeking eviction on the ground of default, bona fide and reasonable necessity of the rented shop but plaintiff for his own business and material alteration also claimed for fixation of standard rent in respect of rented shop.
4. Learned trial Court, after holding full-fledged trial and on appreciation of evidence of both parties, vide judgment dated 13.3.2015 dismissed the civil suit.
5. Plaintiff preferred first appeal against judgment and decree dated 13.3.2015. The First Appellate Court, vide judgment impugned dated 2.2.2019, has granted decree for eviction on the ground of bona fide and reasonable necessity of plaintiff, though grounds of default and material alteration have been decided against plaintiff. The First Appellate Court granted two months time to appellant-defendant to vacate and handover the possession of rented shop to plaintiff from the date of judgment. This judgment and decree for eviction dated 2.2.2019 passed by (Downloaded on 11/11/2022 at 09:13:29 PM) (3 of 6) [CSA-159/2019] the First Appellate Court has been assailed by appellant-defendant by way of instant second appeal.
6. At the outset, it may be noticed that it is not in dispute that respondent-plaintiff is landlord of appellant-defendant and shop in question is in tenancy of appellant-defendant since year 1960. It has also come on record that appellant-defendant is having two shops. The first Appellate Court, has taken into consideration statements of plaintiff Pw-1, Pw-2 and Pw-3. The first Appellate Court has also appreciated the evidence of defendants Nand Lal Dw-1 as also his witness Vinod Dw-2. The first Appellate Court, on the basis of appreciation of evidence of both parties, has recorded a fact finding that plaintiff is in need of shop in question and he purchased the shop for carrying out his own business.
7. The first Appellate Court has recorded fact findings that defendant-tenant, in his evidence has miserably failed to demolish the case of plaintiff for bonafide and reasonable necessity rather defendant has only stated that he has two sons and require both shops. Defendant has adduced evidence that his need of rented shop is greater than plaintiff. The first Appellate Court, placing reliance upon settled proposition of law that landlord is the best judge of his need, has passed the decree for eviction on the basis of bona fide necessity. The first Appellate Court has also taken into consideration the issue of comparative hardship and partial eviction.
8. Counsel for appellant, during course of argument has fairly submitted that appellant is not agreeable for seeking any time to vacate the rented shop and therefore, he has argued the appeal on merits.
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9. The issue of bona fide and reasonable necessity has a mixed question of fact and law. In a catena of judgments, the Hon'ble Supreme Court has observed that it is for the landlord to judge his necessity and neither tenant nor the Court can advise the landlord to compromise his necessity that too for the benefit of tenant.
10. In the instant case, on appreciation of evidence of plaintiff Pw-1 and his witnesses Pw-2 and Pw-3, the issue of bona fide and reasonable necessity has been found proved and such evidence has not been shaken in cross-examination nor has been controverted by defendant. There is no evidence that defendant- tenant ever made any efforts to look out for any alternative shop either prior to the suit or even during pendency of present civil suit. The issue of necessity as decided by the first Appellate Court is a finding of fact and unless and until same is not established as perverse or suffer from misreading/ non-reading of evidence or based on no evidence or in any case based on surmises and conjectures, same is not required to be interfered with. It has also been observed that the first Appellate Court has recorded its reasons, to reverse the judgment and decree of trial Court and the judgment of first Appellate Court is well within its jurisdiction and parameters of law.
11. In case of Santosh Hazari Vs. Purushottam Tiwar [(2001) 3 SCC 179], the Hon'ble Supreme Court while discussing the scope of first appeal to reverse fact findings of the trial Court has categorically held that if the evidence of the trial Court are not in consonance with pleadings and evidence, the first Appellate Court is well within its jurisdiction to reverse such fact findings but the first Appellate Court should come to close (Downloaded on 11/11/2022 at 09:13:29 PM) (5 of 6) [CSA-159/2019] quarters of findings of the trial Court while reversing findings and should appreciate the evidence as a whole in order to reach its own finding. The impugned judgment dated 2.2.2019 is well within parameters of law.
12. This Court finds that fact findings recorded by the first Appellate Court in order to grant a decree for eviction in respect of rented shop on the ground of bona fide and reasonable necessity are based on appreciation of evidence and do not suffer from any perversity and it cannot be said that such findings cannot be decreed for eviction is in any manner either dehors to pleadings or contrary to the settled proposition of law. It need not to be reiterated that landlord is not required to compromise in any manner, just to adjust the convenience of tenant. Once the landlord has proved his necessity being bona fide and reasonable, the first Appellate Court is justified and well within its jurisdiction to pass the decree for eviction in favour of respondent-plaintiff.
13. The Supreme Court in case of Ram Prasad Rajak Vs. NandKumar & Bors. & Ors. [(1998) 6 SCC 748] and H.K. Sharma Vs. Ram Lal [(2019) 4 SCC 153], has held that issue in relation to bona fide requirement of rented premises by landlord is essentially a question of fact and does not involve any substantial question of law.
14. Hon'ble the Supreme Court in case of Kondiba DagaduKadam Vs. Savitribai Sopal Gurjar [(1999) 3 SCC 722], has held 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 (Downloaded on 11/11/2022 at 09:13:29 PM) (6 of 6) [CSA-159/2019] 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 lower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence."
15. Therefore, this Court is of unequivocal opinion that there is no substantial question of law involved in the second appeal and as a result the second appeal is not required to be entertained and dismissed in limine. No costs.
16. Since the rented shop is in tenancy of appellant-defendant since 1960, therefore, this Court deems it just and proper to grant three months time to appellant-defendant to vacate and handover the possession of rented shop to respondent-plaintiff subject to payment of any arrears of rent, if due and future rent/ mesne profits as directed by Courts below.
17. All pending application(s), if any, also stand disposed of.
(SUDESH BANSAL),J NITIN /87 (Downloaded on 11/11/2022 at 09:13:29 PM) Powered by TCPDF (www.tcpdf.org)