RAJENDRA PRASAD AMBIKAPRASAD TIWARI v. JAGDISH PRASAD PYARELAL AGARWAL
1976-04-01
C.P.SEN
body1976
DigiLaw.ai
JUDGMENT C.P. Sen, J.—This is plaintiffs' second appeal against the dismissal of his suit for eviction by the Courts below. 2. The suit house belonged to three brothers, Kalidin, Bhagwandin and Ambika Prasad, all of whom are dead. The plaintiff No. 1 is the son and the plaintiff No. 2 is widow of Ambika Prasad. Kalidin and Bhagwandin died issueless. Kalidin's widow Smt. Laxmibai is also dead and only Bhagwandin's widow Nankibai is alive. Ambika Prasad died in a state of jointness with Laxmibai and Nankibai. The plaintiff No. 1 is now the only male member in the joint family. The plaintiffs had filed two civil suits 170-A and 171-A of 1966 for eviction of two of their tenants i.e. one Shravan Kumar, respondent in the connected Second Appeal No. 167/1971, and Jagdish Prasad the present respondent. The plaintiffs sought eviction on the ground that the plaintiff No. 1 bona fide requires the suit accommodation for rebuilding and thereafter for installing a printing press therein. However, the suits were tried in 2 different Courts and the appeals were also decided by 2 different appellate Courts. But in both the suits, the result is the same and the plaintiffs' suits for eviction have been dismissed. 3. The plaintiffs' case is that the defendant was a tenant in the suit block on a monthly rent of Rs. 20, his tenancy commencing on the 1st of each month. The defendant is running a utensil shop in the suit block. According to the plaintiffs, the suit block is in a very bad shape and has become unsafe, it is bcna fide required by the plaintiff for rebuilding, carrying out essential repairs and for business of starting a printing press. The plaintiffs also alleged that the defendant has made certain encroachments on the Nazul land in front of the suit block and thereby the plaintiffs' interests was adversely affected. Therefore, after terminating the tenancy, the present suit has been filed for eviction of the defendant from the suit block on the grounds u/s 12(1) (c), (f), (g) and (h) of the M. P. Accommodation Control Act, 1961. The defendant contested the claim and submitted that Nankibai is one of the co-owners and the suit is bad for non-joinder of Nankibai as a party. The plaintiffs alone cannot bring the suit for eviction or terminate the tenancy.
The defendant contested the claim and submitted that Nankibai is one of the co-owners and the suit is bad for non-joinder of Nankibai as a party. The plaintiffs alone cannot bring the suit for eviction or terminate the tenancy. It was asserted that the suit block is in a good condition and only minor repairs are required. The plaintiffs do not bona fide require the suit block to rebuild or carry out essential repairs therein and the same is not bona fide required by the plaintiffs for starting a printing press. 4. The learned trial Judge held that Nankibai being a co-owner, the quit notice is invalid as it was not given by all the co-owners, the suit accommodation has become unsafe, the plaintiffs do not bona fide require the suit accommodation for rebuilding, for carrying out repairs or for starting a business of printing press though the plaintiffs do not have any other suitable accommodation for the purpose of starting a printing press. The defendant did not encroach on the Nazul land nor made any construction thereon. The claim for eviction on the ground of rebuilding and starting a printing press has been disallowed because the plaintiffs failed to prove that they had the necessary funds for these purposes. In appeal the learned appellate Judge on the application of the plaintiffs struck off the defendants's defence as he failed to comply with sec-13 (1) of the Act by not regularly depositing the monthly rent. The appellate Judge, however, held that Nankibai is not a necessary party to the suit and the quit notice was valid as it was given by the plaintiff No. 1, who being the sole male member in the joint family, is deemed to be a Karta of the family. The Judge however upheld the findings that the plaintiffs do not require the suit block for rebuilding, for carrying out essential repairs and for starting a printing press as they had no necessary funds, though it was held that the plaintiffs have no other suitable accommodation of their own. The claim for rebuilding was also rejected on the ground that there was no blue print and approval of the Municipality. Regarding essential repairs, it was held that only some minor repairs, such as repairs in the roof, were necessary and it can be easily done without the tenant vacating the block.
The claim for rebuilding was also rejected on the ground that there was no blue print and approval of the Municipality. Regarding essential repairs, it was held that only some minor repairs, such as repairs in the roof, were necessary and it can be easily done without the tenant vacating the block. The suit block has neither become unsafe nor become unfit for human habitation. The appeal was therefore dismissed. 5. The appellants here have challenged the findings of the Courts below and submitted that the findings reached by drawing inferences from the facts are questions of law. It has been urged that there was no specific denial in the written statement that the plaintiffs have no funds for rebuilding or starting a printing press and therefore no issues were framed but the Courts below were in error in giving a finding against the plaintiffs on this question. It has been further urged that the defendant has also asserted that the suit block was in a good condition and therefore there is nothing to prevent the plaintiffs from starting a printing press in the suit block without rebuilding the same and question of funds is not relevant for starting a business. The respondent on the other hand supported the findings and pointed out that these are findings of facts and are binding on this Court in second appeal. It has also been contended that the suit was not filed by the plaintiff No. 1 as a Karta of the family and so the quit notice is bad and the suit is not maintainable at the instance of some of the co-owners. 6. The Privy Council in Durga v. Jewahir 17 I A 122 has held that "There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross or inexcusable may seem to be. Where there is no error or defect in procedure, the finding of the first appellate Court upon a question of fact is final, if that Court has before it evidence proper for its consideration in support of the finding." The Supreme Court in Meenakshi Mills, Madurai Vs. The Commissioner of Income Tax, Madras, has held that when the finding is one of fact, the fact that it is an inference from other basic facts, will not alter its character as one of fact.
The Commissioner of Income Tax, Madras, has held that when the finding is one of fact, the fact that it is an inference from other basic facts, will not alter its character as one of fact. The Privy Council in Misri v. Surji A I R 1950 PC 28 has held that if the High Court in second appeal questions the finding of fact supported by evidence or accepts the evidence of a witness rejected by the appellate Court, it exceeds its power and the decision will be upset. The Supreme Court in Madamanchi Ramappa and Another Vs. Muthalur Bojjappa, has also held that it has always been recognised that the sufficiency or adequancy of evidence to support a finding of fact is a matter for the decision of the Court of facts and cannot be agitated in second appeal. The appellants have relied on the decision of the Privy Council in AIR 1936 77 (Privy Council) and Bejoy Gopal Mukherji Vs. Pratul Chandra Ghose, for the proposition that legal effect of proved facts is a question of law. But the Supreme Court in Sarvate T. B. v. Nemichand 1966 M P L J 26 (S C) has held that the High Court has no jurisdiction in second appeal to set aside the conclusion reached by the District Court on inference of fact that the suit house was not bona fide required by the plaintiff, it being a question of fact. Reiterating the view, the Supreme Court in Mattulal v. Radhe Lal A I R 1974 S C 1597 has further held that the finding that the suit house was not bona fide required by the plaintiff is a finding of fact and it cannot be interfered with in second appeal unless it is shown that in reaching it, a mistake of law is committed by the appellate Judge or it is based on no evidence or is such as no reasonable man can reach. In this case, the appellate Judge had struck off the defence of the defendant u/s 13(6) of the Act and he has considered the effect of striking out the defence on the pleadings and evidence led by the parties, keeping in view the decision of this Court in Smt. Krishnabai Babulal Mishra Vs. Smt. Laxmibai, 7.
In this case, the appellate Judge had struck off the defence of the defendant u/s 13(6) of the Act and he has considered the effect of striking out the defence on the pleadings and evidence led by the parties, keeping in view the decision of this Court in Smt. Krishnabai Babulal Mishra Vs. Smt. Laxmibai, 7. It is true that in Mattulal's case (supra) the Supreme Court has held that the question of funds is not relevant for deciding whether the plaintiff bona fide requires the suit house for starting his business. But in the present case, the plaintiffs' claim for eviction is mainly on the ground that they want to rebuild the suit block and after rebuilding the plaintiff No. 1 wants to start a printing press therein. That means, the rebuilding has to be carried out first and the question of starting printing press will arise thereafter. Sub-section (7) of section 12 requires the plaintiffs to prove that necessary plans and estimates for reconstruction have been properly prepared and that necessary funds for the purpose are available with the plaintiffs. So the question of necessary funds for rebuilding is a relevant consideration under this sub-section and the burden is on the plaintiffs to show that they have got the necessary funds for this purpose. Therefore, the Courts below committed no error in negativing the plaintiffs' claim for eviction because the plaintiffs failed to prove that they had the necessary funds. The Supreme Court in Ramnikal Pitambardas Mehta Vs. Indradaman Amratlal Sheth, has held that once the landlord establishes that he bona fide requires the premises for his occupation, he is entitled to recover possession of it from the tenant irrespective of the fact whether he would occupy the premises without making any alteration in it or after making the necessary alteration. However, in the present case, the plaintiffs mainly sought eviction for the purpose of rebuilding and question of starting a printing press would arise after the suit block is rebuilt. Under the circumstances, the plaintiffs were required to prove that they have the necessary funds. It is not correct to say that there is no denial by the defendant that plaintiffs have no funds because the plaintiffs' allegations in this regard in para 3 of the plaint have been denied by the defendant.
Under the circumstances, the plaintiffs were required to prove that they have the necessary funds. It is not correct to say that there is no denial by the defendant that plaintiffs have no funds because the plaintiffs' allegations in this regard in para 3 of the plaint have been denied by the defendant. The issue as to whether the plaintiffs bona fide require the suit block for rebuilding covers the question as to whether the plaintiffs have got the necessary funds. Under the circumstances, there was no error committed by the Courts below in giving a finding on the question regarding funds. The appellate Judge has found as of fact that the plaintiff No. 1 being the sole male member, he was the Karta of the family and, as such, the quit notice and the suit filed by the plaintiff No. 1 were proper and valid. The findings reached by the Courts below are unassailable and cannot be questioned in second appeal. 8. Now about the findings reached by the Courts below. The appellate Judge was in error in observing that the plaintiffs have not produced the blue print nor the sanction of the Municipality for rebuilding. This is quite erroneous and the appellate Judge has not cared to look into the plan Ex. P. 1 produced by the plaintiffs. It is a certified copy of the sanctioned plan and order of sanction is endorsed on this copy and this proves that the plaintiffs had obtained necessary sanction for rebuilding. The plaintiff No. 1 Rajendra Prasad (P. W. 1) has produced pass books Exs. P. 2 and P. 3 to show that he has the necessary funds for rebuilding. These pass books show that Rs. 22,000 were withdrawn in the year 1963-64. According to the plaintiff No. 1, after withdrawing the money, he had kept the amount with his maternal uncle Laxminarain (P.W. 3). Rightly it has been observed by the Courts below that it is difficult to believe that a large amount of Rs. 22,000 would be kept idle in a godrege almirah when the amount was fetching interest in the Savings Bank Account in the Post Office. Laxminarain (P. W. 3) has been found to be a man of very ordinary means and it is difficult to believe that such a large amount was lying unused for so many years since 1963-64.
22,000 would be kept idle in a godrege almirah when the amount was fetching interest in the Savings Bank Account in the Post Office. Laxminarain (P. W. 3) has been found to be a man of very ordinary means and it is difficult to believe that such a large amount was lying unused for so many years since 1963-64. Regarding starting of printing press, it has been found that the plaintiffs would require about Rs. 10,000 for rebuilding and at least Rs. 5,000 for opening a printing press and the plaintiffs have no such funds with them. About essential repairs, the appellate Judge has not accepted the statements of the plaintiffs witnesses as the same are not supported by the pleadings that the walls have fallen down and the structure has become unsafe for habitation. The question of placing reliance on one set of witnesses in preference to another set was a matter within the exclusive domain of the fact finding Court and on that count there can be no interference in second appeal. It has been found that the suit block requires certain repairs which can be carried out without the tenant vacating the block. 9. The appeal therefore fails and it is dismissed with costs. Counsel's fee as per schedule, if certified. Final Result : Dismissed