Sardar Dan Singh v. Sardar Bhag Singh — 1998 DIGILAW 1313 (RAJ)

Honble GUPTA, J.–This second appeal is directed against the judgment and decree dated 2.6.97 passed by the Addl. Sessions Judge No.8, Jaipur City, whereby he accepted the defendants appeal and dismissed the plaintiffs suit which had been decreed by the Addl. Civil Judge No.1, Jaipur vide judgment and decree dt. 24.8.96. (2). Vide order dt. 22.4.98 the following substantial question of law was framed by this Court:- ``Whether the appellant is entitled for restoration of the premises on the ground of his bonafide necessity particularly when the trial court had decreed the suit while the first Appellate Court had reversed its finding. (3). The short facts of the case are that the plaintiff-appellant filed a suit for eviction of a shop, situate in Chokri Ramdhanderji, on the ground of personal bonafide necessity. It was alleged that the plaintiff needed the shop for the business of electrical goods as he had a licence of fittings. It was further alleged that Achal Singh nephew of the plaintiff lived with him as his family member and he (Achal Singh) was not satisfied with his service and, therefore, wanted to do business with the plaintiff on the suit shop. As regards the comparative hardship, it was alleged that the defendant was having other shops to run his business. In the written statement, it was denied that the need of the plaintiff was bonafide. It was also de- nied that the the defendant was having other accommodation to run his business. It was averred that the intention of the plaintiff in filing the suit is to increase the rent of the shop. The defendant also pleaded that standard rent of the shop be fixed. (4). On the pleadings of the parties, eight issues were framed by the trial Court. A free translation of the issues no. 2 & 3, necessary for the disposal of this appeal, is al follows:- Issue No.2. Whether the plaintiff required the premises for personal, proper and bonafide necessity ? Issue No.3. Whether there will be greater hardship to the plaintiff in comparison to the defendant if decree of eviction was not given ? (5). Plaintiff Dan Singh entered into the witness box as PW1 and examined P.W.2 Khan Chand, P.W.3 Kanwar Singh, P.W.4 Achal Singh and P.W.5 Gurucharan Singh. Issue No.3. Whether there will be greater hardship to the plaintiff in comparison to the defendant if decree of eviction was not given ? (5). Plaintiff Dan Singh entered into the witness box as PW1 and examined P.W.2 Khan Chand, P.W.3 Kanwar Singh, P.W.4 Achal Singh and P.W.5 Gurucharan Singh. In rebuttal, Bhag Singh entered into the witness box as DW 1 and examined D.W.2 Dashrath Singh, D.W.3 Laxman Dass, D.W.4 Mukesh, D.W.5 Tolaram, D.W.6 Ghanshyamdass, and D.W.7 Kartar Singh. After hearing the counsel for the parties, the trial Court found both the issues in favour of the plaintiff and eventually decreed the suit. The first Appellate Court overturned the findings on these issues and dismissed the plaintiffs suit. (6). Mr. Agarwal, learned counsel for the appellant, vehemently contended that the Appellate Court has not considered the reasonings recorded by the trial Court and has come to erroneous conclusion that the plaintiffs need is not bonafide. He canvassed that the Appellate Court could interfere in the judgment of the trial Court only when the findings arrived at by the trial court were not based on evidence or thus was misreading of evidence. Commenting on the judgment under appeal, Mr. Agarwal pointed out that the Appellate Court has not at all consi- dered the question of bonafide necessity of the nephew of the plaintiff. His submission was that the need of the nephew is the need of the plaintiff as nephew is the family member of the plaintiff. He urged that there are no inconsistencies in the statement of the plaintiff, if it is read keeping in mind that the plaintiff is an old man and it is possible that he did not understand the question. On the legal position, that in second appeal there should not be interference in the finding of the first Appellate Court even if the finding of fact is erroneous, his contention was that in a case where there are no concurrent findings of the courts on the facts, and it is found that the Appellate Court failed to consider the evidence on which the trial court relied on, it is the duty of this Court to reappreciate the evidence. He placed reliance on the cases of; Dilbagrai Punjabi vs. Sharad Chandra (1), Banarsi Dass vs. Brig. Maharaja Sukhjit Singh & Anr. He placed reliance on the cases of; Dilbagrai Punjabi vs. Sharad Chandra (1), Banarsi Dass vs. Brig. Maharaja Sukhjit Singh & Anr. (2), Shri Bhagwan Sharma vs. Smt. Bani Ghosh (3), Sundra Naicha Vadiyar vs. Ramaswami Ayyar (4), Panjak Bhargava & Anr. vs. Mohinder Nath & Anr. (5), Jagdish Singh vs. Nathu Singh (6), Abdul Hafiz Khan vs. Jethu Ram (7), T. Sunil Kumar vs. M/s. S.G. Edulgri & Sons (8), Mohd. Yunus vs. Gurubux Singh (9), Umain Mal vs. Rama Kishan (10), Vijay Kumar vs. Distt. Judge (11), Madhukar vs. Ramesh (12), Harvilas vs. Jahoor Khan (13) and O.P. Soni vs. Om Kumar (14). (7). On the other hand, Mr. Mehta, Sr. Advocate contended that the finding of fact recorded by the first Appellate Court cannot be interfered with in second appeal even if this Court comes to the conclusion that the finding is erroneous. His further submission was that the need of the nephew cannot be said to be the need of the plaintiff, more so when Achal Singh, is in Government service and has got separate house and separate ration card. He placed reliance on the cases of Mattu- lal vs. Radheylal (15), Rajendra Kumar vs. Jamna Das Kotewala (16), Ranbir Singh vs. Ashrafi Lal (17), Navneethammal vs. Arjuna Chetty (18), Smt. Satva Gupta @ Madhu Gupta vs. Brijesh Kumar (19), Ramvallabh vs. Damodardas (20) and Girish Narain Tewari vs. State of U.P. (21). (8). I have considered the above arguments. The ratio of the cases of Ranbir Singh vs. Asharafi Lal (supra), Rajendra Kumar (supra) relied upon by the learned counsel for the respondent is that the High Court has no jurisdiction to entertain second appeal on the ground of erroneous finding of fact which was based upon appreciation of relevant evidence as that cannot introduce a substantial error in the procedure and the High Court cannot interfere with the conclusions recorded by the lower Appellate Court. However the Apex Court in the case of Dilbagrai (supra) has observed that where the lower courts recorded finding without considering all evidence interference under Section 100 C.P.C. by the High Court is permissible. So also the ratio of the case of Banarsi Dass (supra) is that if the findings of the lower Court are not based on evidence, the High Court is well within its powers to interfere in the finding. So also the ratio of the case of Banarsi Dass (supra) is that if the findings of the lower Court are not based on evidence, the High Court is well within its powers to interfere in the finding. In the case of Shri Bhagwan (supra) also it has been held by a three Judge Bench of the Apex Court that the High Court was entitled to go into the question as to whether the findings of fact recorded by the first Appellate Court, which was final court of fact, were vitiated on account of non consideration of admissible evidence of vital nature. So also in the case of Sundra Naicka Vadiyar (supra), the Apex Court held that where ignoring certain vital documents the first two courts recorded concurrent finding on the question of fact merely on the basis of oral evidence High Court was justified in interfering with such finding. In the case of Mohd. Yunus (supra) it was held that if there was gross misappreciation of evidence by the lower court, the High Court is justified in interfering with in appeal under Section 100 C.P.C. To the same effect are the observations in the case of Jagdish (supra). (9). The legal position that emerges from the various cases cited at the bar is that normally, this Court in second appeal, is not entitled to interfere in the finding of the facts recorded by the first Appellate Court, but the position will be different if the first Appellate Court reversed the findings of the trial Court without considering the evidence and recording reasons. In the case of SVR Mudaliyar vs. Raja Babu (22), the Apex Court has observed that before reversing a finding of fact the Appellate Court must consider the reasons given by the trial Court. In the case of Dollar Co. vs. Collector (23), it was observed as follows:- ``A court of appeal interferes not when the judgment under attack is not right but only when it is shown to be wrong. The ratio of these two cases is that it is necessary for the Appellate Court while reversing the finding of the trial Court to keep in mind the reasons ascribed by the trial Court. (10). In the instant case, it is evident that the first Appellate Court while reversing the decree did not consider the reasonings recorded by the trial Court. (10). In the instant case, it is evident that the first Appellate Court while reversing the decree did not consider the reasonings recorded by the trial Court. The first Appellate Court has not, at all, considered the evidence led by the plaintiff with regard to the need of shop for Achal Singh, nephew of the plaintiff. Further it has reversed the finding on issue No.2 only on the ground that there are some discrepancies in the statement of the plaintiff. It has, therefore, become necessary for this Court to reappraise the evidence in the light of the observations made by the Supreme Court in various cases. (11). The plaintiffs need is based on two grounds; one, he holds licence of electrical fitting and wants to run the business of electrical goods on the suit shop, two, his nephew Achal Singh also needs the shop for doing business of electrical goods as he is not interested in Government service. (12). The trial court held that the plaintiff has been able to prove that he needed the shop for his business as also for his nephew. The first Appellate Court has not recorded a finding that Achal Singh is not the member of the family of the plaintiff, or that his need cannot be considered the need of the plaintiff. The finding of the trial Court, on this point in favour of the plaintiff thus remained undisturbed. (13). It has to be accepted that the first Appellate Court has not properly appreciated the evidence led by the parties on the need of the plaintiff. What it did, is that it found some inconsistency in the statement of the plaintiff and, therefore, rejected his testimony observing that the plaintiff has not come with clean hands. The inconsistency in the statement of the plaintiff, observed by the first Appellate Court, is that the plaintiff, on the one hand states that he did not do any work for the last about 21 years and in the other part of his statement he deposes that he has got a licence of electrical fittings in the name of Gurunanak Electrical and Decorators and also that he had worked with Kanwar Singh upto 1984. (14). If the entire statement of the plaintiff is read, it cannot be said that there is inconsistency in his statement. (14). If the entire statement of the plaintiff is read, it cannot be said that there is inconsistency in his statement. The plaintiff deposes that he used to sit with Kanwar Singh, who is his brother-in-law, and was running electrical goods shop upto 1984. It has then come in his deposition that he did not do work from 1956 to 1987. This is said to be the inconsistency. By this part of the statement of the plaintiff, that he did not work from 1956 to 1987, it cannot be inferred that he wanted to say that he did not do any work during that period and remained jobless. If his statement is read with reference to context, it comes out that the plaintiff wanted to say that he did not do independent work during that period and he did only electrical fitting work while working with Kanwar Singh. His answer should be considered in context in which it has been given. When he deposes that he had worked with Kanwar Singh and Kanwar Singh used to pay him Rs. 200, 300 or 400 per month and thereafter he states that he did not do any work from 1956 to 1987, it clearly means that the witness wanted to say that he did not do any work other than the work with Kanwar Singh from 1956 to 1987. The first appellate Court has obviously misread the statement of the plaintiff. (15). In this connection, it was pointed out by Mr. Mehta that the plaintiffs statement shows that he worked with Kanwar Singh upto 1989-90 and contended that the need of the premises had not arisen when the suit was filed in 1987. The relevant part of the statement of Dan Singh is ^^daoj flag ds lkFk dke fd;s gq, 3&4 lky gks x;s] eSa mlds lkFk dke lh[kus 3&4 ifgys x;k FkkA** Ofcourse, the answer is not very clear. But it appears that the plaintiff wanted to say that upto 3-4 years before the suit was filed in 1987 he was with Kanwar Singh. The plaintiff is an old man. It has to be accepted that he might not have understood the question yet replied in the manner he understood. On the basis of this part of the statement, the plaintiffs case cannot fail. The plaintiff is an old man. It has to be accepted that he might not have understood the question yet replied in the manner he understood. On the basis of this part of the statement, the plaintiffs case cannot fail. Kanwar Singh, P.W.3 has come in witness box and he deposes that Dan Singh used to sit with him in his shop from 1955 to 1984 and as he changed his business, the plaintiff did not work with him. The clear meaning of the statements of the plaintiff is that he worked with Kanwar Singh from 1957 to 1984, and as Kanwar Singh changed his business, he left him. In my opinion, the appellate Court has erred in rejecting the testimony of the plaintiff on the ground that there are inconsistencies in his statement. (16). It has come in the depositions of the plaintiff that he holds a licence for electrical fitting and he obtained the same on the address of M/s. Guru Nanak Electr- ical & Decorators as shop was required for a licence. The plaintiff did not have his own shop and, therefore, he might have taken the licence showing the address of M/s. Guru Nanak Electrical & Decorators which is the shop of his relation Gurucharan Singh P.W.5. It is clear from the statement of Gurucharan Singh that he is the tenant of the shop which belongs to the Pareek College. Gurucharan has proved the rent receipts Ex.PW5/1 to PW 5/16. There is absolutely no cause to disbelieve this evidence. The first appellate Court has ignored this important evidence. This evidence clearly establishes that the shop situate on Moti Doongari Road which is run by Gurucharan Singh, PW 5 is not in the possession of the plaintiff. (17). The first Appellate Court has again faultered when it inferred from the statement of the plaintiff that he wants to increase the rent and the need is not bonafide. The inference has been drawn on this part of the statement- ^^eq>s irk ugha ;fn bl nqdku ds [kkyh djokus o nwljs O;fDr dks fdjk;k nsus ls djhc 400 :- ekgokj fdjk;k vkSj djhc Ms<+ yk[k :i;k ixM+h vk ldrh gSA** I fail to understand how such an inference can be drawn from the statement quoted above that the plaintiff wants to increase rent. The plaintiff has only shown his ignorance about the facts put to him in the questions asked in suggestive form. There is no evidence on record that the plaintiff has talked someone to take the disputed shop after its eviction. The fact that the shop was let out by the plaintiff in 1956 or in 1968 to some persons, enhancing the rent cannot be considered a circu- mstance to infer that the plaintiff wants that the rent is increased and he does not require the shop bona fide. (18). In sum, the first appellate Court has either misread the evidence, or ignored the important evidence and has also drawn inference from the non existing facts. The trial Court had considered the entire evidence and the decisions of the Apex Court, this Court and the other High Courts and after elaborate discussion had held that the plaintiff required the premises bona fide. The appellate Court has not at all considered the reasoning recorded by the trial Court, and therefore, it is a fit case in which findings of the appellate Court are reversed and those of the trial Court are restored. (19). As already stated, the appellate Court has not entered finding on the necessity of the premises for Achal Singh, nephew of the plaintiff, yet as Mr. Mehta contended that the trial Courts finding is not based on proper appreciation of evidence, it is thought proper to see if the trial Courts finding is incorrect. (20). The facts which have emerged in the evidence are that plaintiff is . Achal Singh is his nephew and he is residing with the plaintiff though he has got a house in Mansarowar, and has got ration card in his name. it has come in evidence that after his childhood Achal Singh started living with the plaintiff as he had lost his parents. The evidence of the plaintiff cannot be seen with suspicion on the ground that the accommodation is insufficient for housing seven members of the family which includes plaintiff, his wife, Achal Singh, his wife and his three kids. Achal Singh is emotionally attached with the plaintiff as he has been residing with him since 1972. Where there is emotional attachment it is not difficult for persons to reside in a small house inspite of inconvenience. It is relevant to state that the plaintiff has got no issue. Achal Singh is emotionally attached with the plaintiff as he has been residing with him since 1972. Where there is emotional attachment it is not difficult for persons to reside in a small house inspite of inconvenience. It is relevant to state that the plaintiff has got no issue. It is natural that Achal Singh would expect to inherit the property of plaintiff. In these circumstances, the trial court was perfectly justified in believing the plaintiffs version that Achal Singh was residing with him as his family member. It is not uncommon that separate ration cards are obtained for certain benefits. Therefore, on the ground that Achal Singh has got separate ration card, it cannot be inferred that he is not the member of the plaintiffs family. (21). A reading of Section 13(1)(h) makes it clear that the landlord may require the premises for his use for the use of his family. The word `family has not been defined in Rajasthan Premises Act. In the case of Lal Chand vs. Mst. Mohini (24), this Court has observed that extensive meaning of the word `family should be given and the word `family would include not only the wife and children but also brothers and sisters, their children and even the children of the deceased brother. So also in the case of Ramvallabh vs. Damodardas (supra), it was observed that the word `family should not be used as a technical term and broad common sense view should be taken with due regards to the facts and circumstances of each case including the social order, habit, customs and ideas of living of the community. In the case of Abdul Hafiz Khan (supra) all the previous authorities were considered and brothers maternal grand son was held to be a family member. (22). In the instant case, Achal Singh is the real nephew of the plaintiff and, therefore, it cannot be said that he is not the family member. In this connection, Mr. Mehta drew my attention to the statement of Achal Singh wherein he deposes Kishan Singh was his grand father and also the grand father of the plaintiff. Dan Singhs fathers name is Sai Singh. It seems that Kishan Singh was the father of Sai Singh. In this connection, Mr. Mehta drew my attention to the statement of Achal Singh wherein he deposes Kishan Singh was his grand father and also the grand father of the plaintiff. Dan Singhs fathers name is Sai Singh. It seems that Kishan Singh was the father of Sai Singh. As Achal Singh had lost his parents in the child-hood, it appears, he did not know much about the ancestors and, therefore, on knowing that Kishan Singh was one of the ascendants he has named Kishan Singh as his grand father. On this part of the statement of Achal Singh it cannot be concluded that Achal Singh is not the nephew of Dan Singh. Even the defendant does not state in his deposition that Achal Singh is not family member of the plaintiff. What he says is that Achal Singh is the cousin of Dan Singh. His this statement is obviously based on the fact stated by Achal Singh. In my considered opinion, the learned trial Court has not erred when it held that Achal Singh is the family member of Dan Singh. (23). In the case of Ram Vallabh vs. Damodar Das (supra), relied on by Mr. Mehta, the question was where R, who was nephew of the landlord could be consi- dered as member of his family. It was on record that there were already four children of the land lord & Rs father was also alive. There was also no evidence that R was brought up by the land lord or the land lord contributed towards the marriage of R. It is in these circumstances it was held that R could not be member of the family of the land lord. The case is clearly distinguishable. (24). It is an admitted fact that Achal Singh is in Government service. The plaintiffs evidence is that Achal Singh wants to give up the job and enter into the business and Achal Singh was not satisfied with his job. Achal Singh also gives such statement. The contention of Mr. Mehta was that Achal Singh has not yet sought voluntary retirement and, therefore, the trial Court could not have accepted the plaintiffs case that the plaintiff required the premises for Achal Singh. This argument is not sustainable. Achal Singh also gives such statement. The contention of Mr. Mehta was that Achal Singh has not yet sought voluntary retirement and, therefore, the trial Court could not have accepted the plaintiffs case that the plaintiff required the premises for Achal Singh. This argument is not sustainable. In the case of T. Sunil Kumar (supra) it was held by Andhra Pradesh High Court that it is not necessary that need for starting business should exist on the date of filing of petition. The M.P. High Court in the case of Madhukar (supra) held that it was not necessary that need for starting business existed on the date of the suit and a land lord can file suit for the need which has to arise in near future. In the case of Vijay Kumar (supra), the Apex Court held that if the landlord comes with the plea that he needs the shop for his son who was employed in Government service to run his private clinic it could not be said that the need for premises was not bonafide. (25). On the ground that Achal Singh is in Government service, it cannot be said that the plaintiff did not require the premises for Achal Singh. It is established that Achal Singh is interested in taking voluntary retirement and he also wants to sit with the plaintiff on the shop. There is no reason to disbelieve the evidence of plaintiff and Achal Singh. That being so, it is fully established that the plaintiff requires the premises also for the business of his nephew who is his family member. (26). In the premise aforesaid, it has to be held that the plaintiff had been able to prove that he required the premises for personal proper and bonafide necessity, and issue no.2 was rightly decided in favour of the plaintiff. The first Appellate Court has committed grave error in reversing the finding. (27). On issue no.3 the trial court held that grater hardship would be caused to the plaintiff if decree for eviction was refused. I fully agree with the finding recorded by the trial court which is based on proper appreciation of evidence. The plaintiff does not have any other shop to run his business. It has already been seen that the shop known as M/s. Guru Nanak Electric Decorators does not belong to the plaintiff. I fully agree with the finding recorded by the trial court which is based on proper appreciation of evidence. The plaintiff does not have any other shop to run his business. It has already been seen that the shop known as M/s. Guru Nanak Electric Decorators does not belong to the plaintiff. If the plaintiff does not get his own shop, hardship is bound to be caused to him. On the contrary, there is clear evidence on record that the defendant has got two shops in his own house situate at Jorawar Singh Gate. Not only that, Bhag Singh, DW 1 admits that his two sons run two juice shops. The defendant also admits that his father had gifted one house, situate in the Munshi Ramdas Rasta, to his one son in which, according to the plaintiff, there are two shops. It was suggested to the defendant that there are two shops in that house. The defendant had no courage to deny. He simply avoided the question by saying that he did not know. It is strange that the defendant does not know if there are shops in the house of his father, possessed by his son. The conduct of the defendant goes to establish that he is not a truthful witness and in order to continue in the suit shop he has come with false plea that greater hardship would be caused to him if the suit was decreed in favour of the plaintiff. (28). The learned trial Court considered the evidence of the witnesses in great detail and there is absolutely no cause to take different view than the one taken by the trial Court. The first Appellate Court has side lined the findings recorded by the trial Court without assigning any reason. It has dealt with the question of hardship at para no. 9 of the judgment, wherein it has not at all been discussed as to whether the defendant had got alternative accommodation of his own. Only it has been observed that on the eviction of the suit shop the family of the defendant would be put to inconvenience. The judgment of the Appellate Court is far from satisfactory. 9 of the judgment, wherein it has not at all been discussed as to whether the defendant had got alternative accommodation of his own. Only it has been observed that on the eviction of the suit shop the family of the defendant would be put to inconvenience. The judgment of the Appellate Court is far from satisfactory. Whenever the appellate Court takes a view different than the one taken by the trial Court on appreciation of evidence, it is the duty of the appellate Court to record re- asons as to why the findings recorded by the trial Court were not correct. The appellate Court should not disturb the finding of the trial Court, unless that finding is wrong. The trial Court has got the additional advantage of seeing the demeanor of the witnesses. In the instant case, the appellate Court without discussing the evidence of the parties reversed the finding of the trial Court. it appears that the learned Judge was determined to allow the appeal of the defendant. (29). In my considered opinion, the plaintiff has successfully established that greater hardship would be caused to him in comparison to the defendant if the decree of eviction was not given. The finding on issue no.3 recorded by the appellate court is set aside and that of the trial Court is restored. (30). As a result of the above discussion the answer to the question framed by this Court vide order dt. 22.4.98 is answered in the affirmative. (31). The result, therefore, is that the appeal succeeds. The judgment and decree passed by the first Appellate Court are set aside and that of the trial Court are restored. The plaintiff shall get costs of this appeal from the defendant.