Rajasthan High Court - Jaipur
Civil Second Appeal Under Section 100 ... vs Deep Narayan Mandal And Others : (2003) ... on 8 December, 2014
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. J U D G M E N T S.B. CIVIL SECOND APPEAL NO.219/1994. Sunder Lal Vs. Mohan Lal Civil Second Appeal under Section 100 CPC against the judgment & decree dated 19/11/1993 passed by the Court of Additional District and Sessions Judge No.2, Jaipur City, Jaipur by which, Civil Appeal No.9/1988 filed by the plaintiff-appellant has been dismissed and the judgment & decree dated 23/04/1988 passed by the Court of Additional Munsiff & Judicial Magistrate No.5, Jaipur City, Jaipur decreeing Civil Suit No.306/1980 in favour of the defendant-respondent, has been upheld. Date of Judgment:- December 8, 2014. HON'BLE MRS.JUSTICE NISHA GUPTA Shri S.M. Mehta, Senior Advocate with Shri Anil Mehta for the plaintiff-appellant. Shri M.M. Ranjan, Senior Advocate with Shri Daulat Sharma for the defendant-respondents. ****** BY THE COURT:-
1) This civil Second Appeal under Section 100 CPC has been filed on behalf of the plaintiff-appellant against the judgment & decree dated 19/11/1993 passed by the Court of Additional District and Sessions Judge No.2, Jaipur City, Jaipur by which, Civil Appeal No.9/1988 filed by the plaintiff-appellant has been dismissed and the judgment & decree dated 23/04/1988 passed by the Court of Additional Munsiff & Judicial Magistrate No.5, Jaipur City, Jaipur decreeing Civil Suit No.306/1980 in favour of the defendant-respondents, has been upheld.
2) The facts giving rise to the filing of this civil second appeal in brief are that the plaintiff-appellant filed a suit for eviction and arrears of rent on the ground that on 18/12/1969, the property was rented to defendant-respondent No.1-Mohan Lal for rent of Rs.67/- per month. The contention of the plaintiff-appellant was that on the same day, the property has been purchased from defendant-respondent No.1 and same has been rented to him and as the defendant-respondent No.1 has not paid any rent, notice has been served on default being committed by him and hence, he be evicted. Per contra, the contention of defendant-respondent No.1 was that he never executed any rent-deed or sale-deed in favour of the plaintiff-appellant. The property was his ancestral property, which was sold to Ramjilal by defendant-respondent No.1, defendant No.1/1 Brij Mohan and defendant No.1/2 Chandra Mohan and Ramjilal have rented the property to defendants No.2 and 3 and it has also been further pleaded that prior to sale-deed dated 18/05/1971, part of the property was mortgaged with Vidhya Devi and Aladin, which was got redeemed from both the persons and possession of the property has been handed over to Ramjilal hence, suit of the plaintiff is based on false assertions and be dismissed. After hearing the parties, both the courts below had dismissed the suit hence, this appeal.
3) The appeal has been admitted on 07/09/1998 on the following two substantial questions of law:-
(1) Whether in the facts and circumstances of the case, the decision of courts are vitiated on account of enlarging the scope of the suit converting the suit of ejectment into one of title?
(2) Whether the finding on Issue No.1 is vitiated as being contrary to the evidence on record?
4) The main issue in this appeal is Issue No.1, which is in regard to relation of landlord and tenant between the parties. The contention of the appellant is that rent-deed Ex.1 has been proved by him and when the rent-deed is proved, both the courts have erred in not decreeing the suit for eviction, enquiry of title is foreign in a suit for eviction and both the courts below have entered into the enquiry of title, which is without jurisdiction and other contention of the appellant is that his suit has been dismissed on the ground that original sale-deed in favour of the plaintiff-appellant has not been submitted, whereas proceedings of the courts below goes to show that certified copy of the sale-deed has been submitted by the defendant hence, there was no need to submit secondary evidence of the document and when document has been produced by the defendant himself, the sale-deed is admitted document between the parties and suit must have been decreed.
5) Per contra, the contention of the defendant-respondent is that it is true that in the suit for eviction, enquiry about title is unwarranted but in the present case, looking to the pleadings of the defence, the court has considered the rival contentions and while considering the Issue No.1, the fact of title has been considered as it was agitated by the parties. The court has not entered into enquiry of title. The question as regards to relation of landlord and tenant between the parties is purely a question of fact and cannot be entertained into this second appeal.
6) Heard learned counsel for the parties, perused the impugned-judgments as well as original record of the case.
7) Ex.1 rent-deed has been submitted by the plaintiff-appellant and on the strength of it his case is that property has been rented to the defendant-respondent No.1 Mohan Lal but it is not simplicitor case of the plaintiff-appellant that he is landlord of the property and same has been rented to Mohan Lal. A specific case has been pleaded that on the day of execution of the rent-deed dated 18/12/1969, property was purchased from Mohan Lal and possession was also handed over to the plaintiff. Both the courts below have considered the question that whether between the parties, there is a relation of landlord and tenant and while dealing with this question, relevant documents have been referred. Ex.A2 certified copy of the sale-deed in favour of the plaintiff has also been considered but it has been rightly held that it is not a conclusive proof that the property has been purchased and, thereafter, rented to the defendant. Both the courts below were conscious of the fact that in compliance of Ex.1 rent-deed, rent has never been paid to the plaintiff-appellant and contrary to the evidence of the plaintiff-appellant, ample evidence has been produced by the defendant that property has been sold to Ramjilal and prior to sale, the part of the property was in possession of Vidhya Devi and Aladin. They have been released from mortgage and possession has been handed over to Ramjilal. Prior to the sale in favour of Ramjilal, agreement to sale Ex.A7 dated 14/02/1971 has also been executed, whereas plaintiff-appellant has produced only two bald documents without any supporting circumstance, which could show that the property was ever rented to defendant and rent has been paid to the plaintiff-appellant.
8) The appellate court was conscious of the fact that in suit for eviction, enquiry of title is foreign but at the very same time, it has been considered by the appellate court specifically that as defence has been raised that defendant never sold the land to the plaintiff and plaintiff has based his whole case on the fact that on the day of the execution of the rent-deed, property has been purchased by him hence, it is essential to consider the facts while deciding the Issue No.1. Hence, in view of above, it cannot be said that the courts below have converted the suit for ejectment into one of title. Plaintiff-appellant has relied on the judgments of the Supreme Court in Radha Devi Vs. Deep Narayan Mandal and others : (2003) 11 SCC 759 and E.Parashuraman (dead) by LRs. Vs. V.Doraiswamy (dead) by L.R. : (2006) 1 SCC 658, where it has been held that defence of question of title in eviction suit is not permitted and would frustrate the purpose of Rent Act. There is no doubt about this legal position but here in the present case, to consider the fact of relation of landlord and tenant between the parties, ancillary facts have been considered, which necessarily as regards to the sale of property in favour of plaintiff and Ramjilal and the fact that earlier property was in possession of Vidhya Devi and Aladin, which clearly negatives the execution of Ex.1 rent-deed and Ex.A2 sale-deed in favour of the plaintiff. The appellant himself is submitting that the sale-deed Ex.A2 should have been considered then, he could not blow hot & cold at the same time to say that the nature of documents referred to by the defendant-respondents should not be considered as it would convert the inquiry into the inquiry of title. It was inescapable for the courts below to consider the documents and evidence produced by both the parties.
9) The contention of the appellant as regards to submission of secondary evidence as regards to sale-deed is of no consequence as considered earlier that inspite of sale-deed; it gives no evidence as regards to the relationship of landlord and tenant between the parties. As regards to the secondary evidence, reliance has been placed on the judgments of Supreme Court in Kisan Ghule Vs. Puransa and others : AIR 1928 Nagpur 119 and Badri Parshad and another Vs. Shanti Lal Seth and others : AIR 1941 Lahore 228, where it has been held that where a party to the suit calls the opposite party to produce the evidence and on their being produced, they should be admitted in toto without any proof and contention of the appellant is that the sale-deed should be admitted in toto. For the sake of argument, it could be concluded that Ex.1 sale-deed has been produced in evidence still, it could not prove case of the plaintiff-appellant as other attending circumstances are against the appellant and were rightly considered by both the courts below while dealing with Issue No.1. Nothing has been shown that findings on Issue No.1 are contrary to the evidence on record. The courts below have also considered the certified copy of sale-deed and after considering the same, rent-deed and Ex.A2 sale-deed has not been rightly relied upon.
10) Hence, in view of above, both these questions stand decided against the appellant.
In the result, the appeal fails and is hereby dismissed. The records be sent back to the courts below forthwith.
(NISHA GUPTA), J.
Anil/99 All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed Anil Kumar Goyal Sr.P.A. Cum J