Rajasthan High Court - Jaipur
Poonam Chand Jatil vs Khalil Ahmed And Others on 12 September, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 981/2011
Poonam Chand Jatil son of Dhanna Lal, aged about 78 years,
retired Railway employee, resident of House No.199, Dadwada
Kota Junction, Kota.
----Appellant-defendant
Versus
1. Khalil Ahmed son of Abdul Shakur, State Employees, resident
of House No.199, Dadwada Kota Junction, Kota (Since Deceased)
through legal heirs:
1/1. Mohd. Alam S/o Late Shri Khalik Ahmed,
1/2. Mohd. Aslam S/o Late Shri Khalik Ahmed,
1/3. Mohd. Akram S/o Late Shri Khalik Ahmed,
1/4. Mst. Rijvana D/o Late Khalik Ahmed,
Resident of house No.199, Dadwada Kota Junction, Kota.
2. Akil Ahmed Son of Shri Abdul Shakoor, resident of House
No.199, Dadwada Kota, at present TRD Railway Quarter,
Ramganj Mandi, Kota
----Respondent-Plaintiff
For Appellant(s) : Mr. Arvind Bhardwaj
For Respondent(s) : Mr. Alok Chaturvedi
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
12/09/2022
1. Appellant-defendant has preferred this second appeal under Section 100 of CPC, assailing the judgment and decree dated 15.9.2011 passed in Civil Regular First Appeal No.22/2007 by Additional District Judge No.3, Kota, affirming the judgment and decree for rent and eviction dated 26.3.2007 passed in Civil Suit No.489/1987 by Civil Judge (Junior Division) North, Kota whereby suit for rent and eviction has been decreed against defendant and in favour of plaintiffs.
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2. Heard counsel for both parties and perused the impugned judgments on record.
3. Rented premise is one room situated in House No.199, Dadwada, Bheemganj Mandi, Kota which is in tenancy of appellant-defendant at the rate of Rs.16/- per month and in respect of which a decree for eviction has been passed in favour of respondents-plaintiffs on the ground of bonafide and reasonable necessity under the provision of Section 13(1) (h) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as " the Rent Act").
4. The relevant facts, in brief are that respondents-plaintiffs instituted civil suit for eviction on 18.07.1987, stating inter alia that they have purchased entire House No.199 at Dadwada, Bheemganj Mandi, Kota through registered sale deed dated 25.10.1986 from its erstwhile owner Sh. Mukut Bihari and defendant was his tenant in one room at ground floor at the rate of Rs.16/- per month. It was stated that after purchasing the house with tenanted room, which is in possession of defendant, defendant has not paid the rent and further the room is required for residence of the family of plaintiff No.2 Akil Ahmed who carried on work of cycle repairing in the shop nearby situated.
5. Defendant submitted his written statement and stated that he was tenant in two rooms at ground floor and not one room but plaintiffs have indicated only one room in tenancy of defendant in the sale deed dated 25.10.1986 and such mention suffer from interpolation. He submitted that after purchase of house, plaintiffs broke out locks of his one room and took possession of that room forcibly, therefore, he lodged an FIR and thereafter, instituted a civil suit for restoration of possession in respect of that one room. (Downloaded on 25/12/2022 at 07:49:36 AM)
(3 of 10) [CSA-981/2011] His suit No.250/1987 was decreed vide judgment dated
30.11.2000 and appeal thereagainst was dismissed on 18.5.2005 and further both judgments were affirmed in second appeal No.343/2005 vide order dated 12.5.2008. Defendant denied the ground of default and bonafide necessity and contended that eviction suit in respect of part of rented premises is not maintainable and as such the same is liable to be dismissed.
6. Learned trial Court framed issues. Apart from issues of default, bonafide necessity, hardship and partial eviction etc. specific issue No.9A and 9B were framed to the effect as to whether the defendant was tenant in two rooms with front Verandha, Chowk, Latrine and Bathroom and as to whether plaintiffs dispossess the defendant from one room after breaking his locks?
7. Both parties adduced their respective evidence and the trial Court, vide judgment dated 26.3.2007 decided issue No.9A and 9B against defendant and observed that defendant was tenant only in one room and it is not proved that plaintiffs dispossessed the defendant from another room after breaking locks. The issue of default was decided against plaintiffs but the issue of bonafide and reasonable necessity was decided in favour of plaintiffs and accordingly suit for eviction was decreed along with rent at the rate of Rs.16/- per month for use and occupation.
8. The defendant preferred first appeal, assailing the judgment and decree for rent and eviction dated 26.3.2007. The first Appellate Court re-considered and re-heard the entire evidence and affirmed fact findings of the trial Court as also decree for eviction and dismissed the first appeal vide judgment dated 15.9.2011.
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9. Against concurrent findings of fact on the issue of bonafide and reasonable necessity, this second appeal has been preferred by the defendant-tenant.
10. This Court, vide order dated 11.4.2012, admitted the second appeal on the following substantial questions of law:
"(1) Whether the order dated 12.5.2008 passed in SB Civil Second Appeal No.343/2005 amounts to setting aside of the judgment and decree dated 30.11.2000 passed by the Civil Judge (Junior Division) North, Kota in Civil Suit No.250/1987 as affirmed by the appellate Court?
(2) Whether the findings of Courts below on issue Nos.9-A and 9-B are perverse and contrary to evidence available on record including the judgment and decree dated 30.11.2000 (Ex.A-16)?
(3) Whether a decree for eviction can be passed only in regard to a part of the tenanted premises. If no, what is that effect of it on the impugned judgments and decree?"
11. The previous order-sheet of the present appeal dated 17.8.2017 goes to show that counsel for appellant sought time to seek instructions from the appellant to vacate the rented room to plaintiffs. Thereafter, the matter was adjourned for one or another reason and now has come up for hearing.
12. Having heard counsel for both parties, it is an undisputed position that appellant-defendant is in possession of only one room as tenant, in respect of which decree for eviction has been passed and has been affirmed in first appeal. As far as another room is concerned, as per plaintiffs-landlord, this room was never in tenancy of defendant and same was given by erstwhile owner Sh. Mukut Bihari to defendant for some time as licensee at the occasion of marriage and later on same was vacated by him. Whereas as per defendant, plaintiffs have forcefully taken the possession of that room and he was tenant in that room but was (Downloaded on 25/12/2022 at 07:49:36 AM) (5 of 10) [CSA-981/2011] dispossessed on 25.10.1986 after breaking locks. To manipulate the illegal possession, plaintiffs carried out interpolation in the sale deed dated 25.10.1986, indicating only one room in the tenancy of defendant. Counsel for defendant has pointed out that civil suit for mandatory injunction filed by defendant for restoration of possession of second room was decreed vide judgment dated 30.11.2000 (Ex.A16) and though decree has been affirmed up to second appeal but same has not been executed and thus, the possession of another room is continuing with plaintiffs.
13. Substantial Question of Law No.1:
13.1 S.B. Civil Second Appeal No.343/2005 was preferred by the present respondents-plaintiffs, assailing judgment and decree dated 30.11.2000 passed in civil suit No.250/1987 whereby and whereunder the civil suit for mandatory injunction filed by present appellant-defendant-tenant, to restore his possession over the another room was decreed. Although, the decree for mandatory injunction dated 30.11.2000 was affirmed in first appeal vide judgment dated 18.5.2005 but in second appeal No.343/2005, this Court observed in its order dated 12.5.2008 while deciding the second appeal finally that since subsequent to that suit, a civil suit for eviction has been filed, which has been decreed, therefore, in view of subsequent events, parties may make their submissions in the suit for eviction.
13.2 As has been discussed hereinabove that in the suit for eviction, in relation to dispute as to whether defendant-tenant was forcefully dispossess from another room and as to whether two rooms were in tenancy of defendant, specific issues No.9A and 9B were framed. Thus, these issues were involved and adjudicated in the suit for eviction filed by plaintiffs-landlord, therefore, the (Downloaded on 25/12/2022 at 07:49:36 AM) (6 of 10) [CSA-981/2011] judgment and decree for restoration of possession dated 30.11.2000 was placed subservient to the final decision on the suit for eviction. In the suit for eviction, the issues No.9A and 9B have been decided against defendant and it has been held that two rooms were not in tenancy of defendant and only one room was in his tenancy and it has not been proved that plaintiffs have forcefully dispossessed the defendant from another room by breaking locks. Such fact findings on issues No.9A and 9B has been affirmed in the first appeal also. Therefore, the effect of the order dated 12.5.2008, decided the second appeal No.343/2005 is apparently clear that despite of judgment dated 30.11.2000 passed in favour of tenant, parties were left open to make their submissions with regard to issue of restoration of possession of the another room, in the suit for eviction filed subsequently. Once in the civil suit for eviction, the factum of illegal dispossession of defendant from one room has been decided against defendant and while deciding issues No.9A and 9B against defendant, the suit for eviction has been decreed in favour of plaintiffs, therefore, the previous judgment and decree dated 30.11.2000 issuing direction for restoration of possession of tenancy on another room has virtually become redundant and in this way, the order dated 12.5.2008 passed in S.B. Civil Second Appeal No.343/2005, virtually renders the judgment and decree dated 30.11.2000 as ineffective and renders the same subject to final outcome of eviction suit. Thus, substantial question of law No.1 stands answered accordingly and after passing the decree for eviction dated 26.3.2007 which has been affirmed in first appeal vide judgment dated 15.9.2011, the previous judgment and decree dated 30.11.2000 passed in favour of defendant to re-deliver the (Downloaded on 25/12/2022 at 07:49:36 AM) (7 of 10) [CSA-981/2011] possession of one room to him has become redundant and ineffective as such renders no help to the defendant.
14. Substantial Question of Law No.2:
14.1 Issues No.9A and 9B are issues of fact and on appreciation of evidence, a fact finding has been recorded against defendant. As per evidence, in statements of defendant (Ex.5) he himself admits that he was tenant only in one room and further admits that another room was given by Mukut Bihari for time being at the occasion of marriage of his children and he never paid rent of another room. Learned Courts below, considered that another room was in tenancy of one Madho Singh against which Mukut Bihari instituted a civil suit for eviction, which was decreed vide judgment dated 30.11.1983 (Ex.6). Learned Courts below compared the certified copy of sale deed dated 25.10.1986 and observed that the vendor Mukut Bihari himself indicated one room in tenancy of defendant and by bonafide error such indication could not be mentioned in the another copy of sale deed. Thus, no interpolation in the sale deed was found proved by plaintiffs. On the basis of statements of witnesses and other contemporary evidence, defendant was held to be tenant only in one room. Both Courts have held that there is no evidence from the side of defendant to prove that plaintiffs dispossessed the defendant from another room forcefully after breaking his locks. Thus, fact findings on issue No.9A and 9B are based on appreciation/re-
appreciation of evidence.
14.2 The Hon'ble Supreme Court in case of Damodar Lal Vs. Sohan Devi & Ors. [(2016) 3 SCC 78] has observed as under:-
"Para 12.....Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out of a complete (Downloaded on 25/12/2022 at 07:49:36 AM) (8 of 10) [CSA-981/2011] misreading of evidence or it should be based only on conjectures and surmises. 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."
14.3 For the discussion made hereinabove, the fact finding of two Courts below on issues No.9A and 9B cannot be held to be suffer from perversity and contrary to the evidence on record. The effect and fate of judgment dated 30.11.2000 (Ex.A16) passed in favour of defendant has already been discussed in the first question of law, therefore, the substantial question of law No.2 is decided in negative against appellant.
15. Substantial Question of Law No.3:
15.1 This substantial question of law involves the factual dispute and once it has been proved that only one room was in tenancy of defendant and for which the suit for eviction was filed which has been decree, therefore, the question does not arise that the suit for eviction was filed in respect of part of tenanted premises.
Though, defendant took defense that two rooms were in his tenancy to this fact has not been held proved by his evidence. This question of law is virtually a question of fact and is answered accordingly against appellant.
16. No other substantial question of law has been suggested nor arises in the present second appeal. All substantial questions of law framed for consideration have been answered hereinabove against appellant and therefore, the second appeal is not liable to be succeeded.
17. The Hon'ble Supreme Court in case of Umerkhan Vs. Bismillabi Shaikh & Ors. [(2011) 9 SCC 684] has observed (Downloaded on 25/12/2022 at 07:49:36 AM) (9 of 10) [CSA-981/2011] that if a second appeal is admitted on substantial questions of law, while hearing the second appeal finally, the court can re-frame the substantial question of law or can frame new substantial question of law or even can hold that the question of law as already framed do not fall within the purview of substantial question of law but the High Court cannot exercise its jurisdiction under section 100 CPC, without formation/involvement of substantial question of law.
18. The Hon'ble Supreme Court in C.Doddanarayana Reddy Vs. C.Jayarama Reddy [(2020) 4 SCC 659], while discussing the jurisdiction of the High Court to interfere with the finding of fact under Section 100 CPC has held that though the High Court could have taken different view acting as the trial Court but once, two Courts below have returned finding which is not based upon any misreading of material documents, nor against any provision of law neither could it be said that any judge acting judicially and reasonably could have reach such a findings, then, the Court cannot be said to have erred. Relying upon the previous judgment the Supreme Court has held as under:-
"Recently in another judgment reported as State of Rajasthan v. Shiv Dayal [(2019)8 SCC 637], it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded dehors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:
"16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose, J. as His (Downloaded on 25/12/2022 at 07:49:36 AM) (10 of 10) [CSA-981/2011] Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43)."
19. The upshot of discussion is that the second appeal is bereft of merits and same is hereby dismissed. There is no order as to costs.
20. However, since appellant-defendant-tenant is in tenancy over the one room in question since long, three months time is granted to vacate and handover the possession to the respondent-landlord subject to payment of due rent and future rent.
21. Record of the trial Court be sent back forthwith.
22. Stay application and any other pending application(s), if any, stand(s) disposed of.
(SUDESH BANSAL),J NITIN /74 (Downloaded on 25/12/2022 at 07:49:36 AM) Powered by TCPDF (www.tcpdf.org)