Rajasthan High Court - Jaipur
Civil Second Appeals U/S.100 Cpc ... vs . Santosh Bihari) Filed By The ... on 12 November, 2014
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT 1) S.B. CIVIL SECOND APPEAL NO.64/2010. Santosh Bihari Vs. Bhagwan Das Sindhi 2) S.B. CIVIL SECOND APPEAL NO.63/2010. Santosh Bihari Vs. Bhagwan Das Sindhi Civil Second Appeals u/S.100 CPC against the common judgment & decree dated 09/10/2009 passed by Additional District Judge No.9, Jaipur City, Jaipur whereby, it has dismissed Civil Regular Appeal No.10/2009 (Santosh Bihari Vs. Bhagwan Das Sindhi) filed by the plaintiff-appellant upholding the judgment & decree dated 03/11/2007 passed by Additional Civil Judge (Junior Division) No.5, Jaipur City, Jaipur decreeing the suit filed by the plaintiff-appellant for recovery of rent @Rs.300/- per month but refusing to pass the decree of eviction, whereas the appellate court has partly allowed Civil Regular Appeal No.01/2008 (Bhagwan Das Sindhi Vs. Santosh Bihari) filed by the defendant-respondent partly confirming the judgment & decree of the court of Additional Civil Judge (Junior Division) No.5, Jaipur City, Jaipur dated 03/11/2007 to the extent of dismissing the suit and refusing to pass the decree of eviction but has determined the rate of rent at Rs.25/- per month instead of Rs.300/- per month, as determined by the court below. Date of Order:- November 12, 2014. HON'BLE MRS. JUSTICE NISHA GUPTA Shri Babu Lal Gupta for the plaintiff-appellant. Shri Sudesh Bansal for the defendant-respondent. **** BY THE COURT:-
Both these second appeals have been filed on behalf of the plaintiff-appellant u/S.100 CPC against the common judgment dated 09/10/2009 passed by Additional District Judge No.9, Jaipur City, Jaipur whereby, it has dismissed Civil Regular Appeal No.10/2009 (Santosh Bihari Vs. Bhagwan Das Sindhi) filed by the plaintiff-appellant upholding the judgment and decree dated 03/11/2007 passed by Additional Civil Judge (Junior Division) No.5, Jaipur City, Jaipur partly dismissing the suit thereby, decreeing the suit for recovery of rent @Rs.300/- per month but refusing to pass the decree of eviction, whereas the appellate court has partly allowed Civil Regular Appeal No.01/2008 (Bhagwan Das Sindhi Vs. Santosh Bihari) filed by the defendant-respondent partly confirming the judgment & decree of the court of Additional Civil Judge (Junior Division) No.5, Jaipur City, Jaipur dated 03/11/2007 dismissing suit and refusing to pass the decree of eviction but the appellate court has determined the rate of rent Rs.25/- per month instead of Rs.300/- per month determined by the court below.
2) Since both these appeals arise out of the common judgment of the first appellate court hence, they are being decided by this common judgment.
3) The facts giving rise to the filing of these two appeals in brief are that a suit was filed by the plaintiff-appellant for eviction and recovery of rent on the ground of nuisance and also on other grounds with the averments that rate of rent of the disputed premises is Rs.300/- per month excluding the house tax, electricity and water charges. The court below has decreed the suit for arrears of rent and held that rate of rent is Rs.300/-, which is due since 01/05/1995 but eviction on ground of nuisance has been denied and benefit of first default has been given to the defendant-tenant. Appeal has been preferred by both the parties in which issue of nuisance is also being stand in the same way and decided against the appellant, whereas the appellate court has held that rate of rent is only Rs.25/- per month and the decree as regards to the rate of rent of Rs.300/- per month has been set-aside hence, these second appeals have been filed by the appellant with the contention that rate of rent should be held at Rs.300/- per month and decree of eviction on the ground of nuisance be allowed.
4) Heard learned counsel for the parties and perused the impugned judgments as well as original record of the case.
5) As regards to nuisance, contention of the learned counsel for the appellant is that there was clear admission of the tenant that he was arrested by the police on the charge of breach of peace; inspite of this, the court below was not justified in not decreeing the suit on the ground of eviction and evidence has not been considered in right perspective. Defendant has admitted in his evidence that he has put the water tank on the floor of the rented premises and evidence has been misread by the court below.
6) Per contra, the contention of the learned counsel for the respondent is that there is no perversity in the impugned-judgments and looking to the concurrent findings of the courts below, no interference is needed.
7) It has been pleaded by the appellant as regards to the nuisance that water tank has been placed on the floor of the rented premises for which, a specific contention has been raised and considered by both the courts below, whereas defendant has stated that he was not having any water connection in the premises hence, he has put the cemented water tank on the floor, which was there for last more than 40 years and courts below have also considered the fact that the plaintiff-appellant is not residing in the same house. No neighbor or persons residing in the same house in other portions Ghanshyam Das Soni and Sheetaldas Singhvi have been examined to show that any nuisance has been committed by the tenant. No specific date for creating nuisance has been shown. It has been specifically stated that when defendant himself as admitted that he was arrested for breach of peace, on this admission alone, issue should be decided in favour of the appellant but defendant has never said that he was arrested as regards to commission of nuisance in the impugned premises and appellant himself has admitted in his cross-examination that he has never lodged any report of nuisance or breach of peace. In view of the clear-cut admission of the appellant himself, the courts below were justified in holding that issue of nuisance has not been proved by the appellant and looking to the concurrent findings of both the courts below, no substantial question of law has been raised by the appellant as regards to issue of nuisance.
8) Hence, contention in this regard is not acceptable.
9) Other contention of the appellant is that the court below has rightly held that rate of rent is Rs.300/- per month. He himself has categorically stated that rate of rent is Rs.300/- per month but appellate court has wrongly relied on Ex.A/1 to Ex.A/4 and held that the rate of rent is Rs.25/- per month only, which is otherwise not possible for a building in the present era that it would be let on the rate of rent of Rs.25/- per month only. It is true that the court below has held rate of rent as Rs.300/- per month but appellate court has rightly considered the evidence of the rival parties as PW1 Santosh Bihari has only contended that rate of rent is Rs.300/- per month but no documentary evidence has been submitted to fortify the contention, whereas the defendant has submitted Ex.A/1 to Ex.A/4 entries of the house tax in which rate of rent is entered as Rs.300/- annual and plaintiff himself has admitted in his cross-examination that these entries have been submitted by his elder brother Madan Lal and when Ex.A/1 to Ex.A/4 clearly speak that actual rate of rent is Rs.300/- annual in reference to the impugned premises, the appellate court has read the evidence in right perspective and rightly held that the rate of rent is Rs.25/- per month only.
10) Looking to the finding of the court below, there is no error in the finding of the appellate court. The appellate court has rightly held that plaintiff could not prove that rate of rent was Rs.300/- per month, whereas the documents, which have been produced by the defendant and admitted by the plaintiff clearly speaks that the rate of rent is Rs.25/- per month only.
11) Hence, no substantial question of law has been raised by the appellant and both the appeals deserve to be dismissed.
Consequently, both these second appeals are dismissed. Records be sent back to the courts below forthwith.
(NISHA GUPTA), J.
Anil/71-72 All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Anil Goyal Sr. P.A.