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1997 DIGILAW 50 (RAJ)

Mohan Lal v. Parvati Devi

1997-01-09

MOHD.YAMIN

body1997
Honble YAMIN, J. – This second appeal has been filed by the defendant-tenant against the judgment and decree of learned Additional District Judge No.1, Bikaner dated 31.7.1996 by which he has dismissed the appeal and affirmed the judgment of Munsif and Judicial Magistrate, Bikaner dated 7.8.1993 decreeing the suit for eviction and damages for use and occupation @ Rs. 60/- per month. (2). The facts of the case giving rise to this appeal may be summarised thus :- Plaintiff-respondents have a shop in Bikaner city at Dauji Road measuring 4 x 6. This shop was let out to Mohanlal @ Rs. 60/- per month on rent. Tenant stopped paying rent from 1.6.1984 and became defaulter. He also damaged the property and also refused to admit the respondents as land-lords. The suit was originally filed by Champalal and Sanjay Kumar. The shop was required for personal use and occupation and a suit was filed for recovery of rent and damages for use and occupation. During that pendency of the suit Champalal expired and his legal representatives who are respondents before this Court were brought on record. The suit was amended on 27.11.1989 and a ground of subletting was added and another ground was also added the appellant was having a Pan Shop at Station Road, he did not require it. It was pleaded that shop was being run in the name of New Bhati Watch Company by the sub-tenant. The defendant No.1 New Bhati Watch Company through Kalu Bhati alias Manohar Bhati was also added as a party in the suit. Mohanlal defendant admitted tenancy and pleaded that Champalal was an old man and did not know as to how to do the business and that Sanjay Kumar was a Government servant who could not have done any business in the demised premises. It was also pleaded that the rent was paid and the tenant was not a defaulter and the landlords did not require the shop bona fide for their personal use and occupation. It was also pleaded that the suit was filed with an ulterior moti- ve of raising the rent. It was also pleaded that the shop was not sub-letted, nor its possession was parted with and that the tenant was not carrying the business of Pan at Station Road. (3). The trial Court framed issues and recorded evidence of the parties. It was also pleaded that the suit was filed with an ulterior moti- ve of raising the rent. It was also pleaded that the shop was not sub-letted, nor its possession was parted with and that the tenant was not carrying the business of Pan at Station Road. (3). The trial Court framed issues and recorded evidence of the parties. After hearing them it held that the plaintiff required the suit property bona fide for perso- nal use and that the tenant had sub-letted the property. Accordingly it decreed the suit as stated above. Appeal No. 81/94 was preferred against this judgment and it was dismissed by learned Addl. District Judge No.1, Bikaner by his order dated 31.7.1996. (4). Mr. K.C. Samdariya put his appearance on behalf of the plaintiffs-respon dents. He has opposed the admission of the second appeal. (5). Learned counsel for the appellant contended that with the death of Champalal the personal and bona fide need finished and new grounds were searched by the landlords. According to him the new grounds i.e. ground of sub-letting and ground of personal and bona fide need were not proved by the evi- dence. He has contended that the trial Court gave findings on a very weak evidence on behalf of the landlords respondents in their favour which were affirmed by the first appellate Court and both the Courts have mis read evidence, therefore, according to him neither the personal and bona fide need was proved nor sub-letting was proved. Hence the decree should not have been affirmed by the first appellate court. (6). On the other hand, learned counsel for the respondents has contended that there is concurrent finding of fact of both the Courts below which cannot be interferred. According to him no substantial question of law is involved in this app- eal. He has cited a decision given in the case of Mohan Kumar vs. Nand Kishore (1), and has submitted that sub-letting is finding of fact and in second appeal substantial question of law should be raised. He has also cited the decision given in the case of O.T.M.O.M. Meyyappa Chettair vs. O.T.M.S.M. Kasi Viswanathan Chettiar & Anr. (2), in which the Apex Court has held that the High Court in second appeal is not justified to reappraise the evidence on record and to state that the findings of Courts below were perverse. He has also cited the decision given in the case of O.T.M.O.M. Meyyappa Chettair vs. O.T.M.S.M. Kasi Viswanathan Chettiar & Anr. (2), in which the Apex Court has held that the High Court in second appeal is not justified to reappraise the evidence on record and to state that the findings of Courts below were perverse. According to the learned counsel for the respondents both the findings are of facts and no question of law what to say of substantial question of law is involved in this appeal. (7). There appears to be force in the submissions of the learned counsel for the respondents. True the personal bona fide need of Champalal ended with his death but after his death the ground of sub-letting and of personal and bona fide need on other count was proved by the respondents by leading evidence to that effect before the trial Court. The findings have been affirmed by the first appellate Court. (8). I have examined the judgments of both the Courts below. I do not find infirmities. I find no question of law involved in this appeal as the findings are of fact. Therefore, the appeal deserves to be dismissed. The appeal is hereby dismissed in limine at admission stage.