Shyam Lal v. Manohar Kumari. — 1999 DIGILAW 787 (RAJ)

Honble YADAV, J.–The defendant appellant has filed this second appeal against the judgment and decree dated 13.5.99. passed by the learned Additional District Judge No.1, Udaipur in Civil Appeal No. 7/99 whereby the learned Additional District Judge No.1 Udaipur has affirmed the preliminary decree of redemption of mortgage passed by learned Additional Civil Judge (Senior Division) No.1, Udaipur in Civil Original Suit No.13/97 on 30.1.99. (2). The present second appeal is posted today for admission but with the consent of learned counsel for the parties it is finally disposed of at admission stage. (3). Heard. (4). With the assistance of the learned counsel for the parties I have gone through the judgment passed by the learned trial court as well as the judgment of affirmance passed by the learned first appellate court. (5). The learned trial court,after analytical discussion of the oral and documentary evidence on record, recorded a positive finding relating to possession of the defendant-appellant Shyam Lal to the effect that he is in possession of the disputed shop as a son-in-law of mortgagee Dhan Raj Ji. The claim put forth by the defendant appellant to the effect that he was in possession of the disputed shop as a tenant of the mortgagor was negatived by the learned trial court. In support of the aforesaid finding of fact the learned trial court has given cogent and convincing rea- sons with which I am at one. It has committed no error in disbelieving the statement on oath of defendant- appellant, who examined himself as Dw 1. (6). Dissatisfied with the preliminary decree passed by the learned trial court the defendant-appellant preferred an appeal. The learned first appellate court after prudent reappraisal of oral and documentary evidence on record affirmed the afo- resaid finding of fact relating to nature of the possession of the defendant-appellant Shyam Lal over the shop in dispute. The plea of the defendant-appellant before the first appellate court that he is in possession over the disputed shop not as son-in-law of mortgagee but as a tenant of mortgagor is again negatived by the first appellate court. (7). It is urged before me by the learned counsel for the appellant that both the courts below had committed substantial error in declaring the Tehrir executed between the parties on 19.11.74 to be inadmissible in evidence. (7). It is urged before me by the learned counsel for the appellant that both the courts below had committed substantial error in declaring the Tehrir executed between the parties on 19.11.74 to be inadmissible in evidence. He further urged that if the Tehrir dated 19.11.74 would have been taken in to account, the finding of the nature of possession of the defendant - appellant would have been otherwise. In support of his aforesaid arguments he placed reliance on the decisions reported in AIR 1962 SC 1314 (1), 1993 (Suppl ).(3) SCC 497 (2) and AIR 1991 SC 1551 (3). It is pertinent to mention here that the learned trial court by order dated 10.1.97 declared the Tehrir dated 19.11.74 to be inadmissible in evidence. Against the aforesaid order dated 10.1.97 passed by the learned trial court, the defendant-appe- llant preferred S.B. Civil Revision Petition No. 225/97 before a learned single Judge of this court which was dismissed with an observation that the question relating to admissibility of Tehrir dated 19.11.74 can be raised in appeal as revision against such order is not maintainable. The appellant raised the question relating to admissibility of Tehrir dated 19.11.74 which was held to be inadmissible by the lear- ned first appellate court. (8). It is well to remember that a man can speak lie but circumstances never speak lie. In the present case, it is borne out from the record that usufructuary mortgagee late Shri Dhan Raj Ji had no son except his only daughter defendant respondent No.2 Smt. Gunmala, who is admittedly married to the defendant appel- lant. All the members of his family were living jointly and business of Dhan Raj Ji, who lent Rs. 35,000/- to the mortgagor on 4.2.75 through registered mortgage deed, was being looked after by the defendant-appellant during his life time. There is recital in mortgage deed Ex.2 dated 4.2.75 that the possession of the disputed shop was given to the mortgagee father-in-law of defendant-appellant by mortgagor to remain in possession over the disputed shop in lieu of interest in presence of PW 3 Fateh Lal Nagouri, scribe of Ex.2, who proved its execution and delivery of possession to mortgagee by mortgagor in his presence by way of exchange of key of the disputed shop by mortgagor to mortgagee father-in-law of the defendant-appellant . PW 3 has not been put to cross-examination on the fact of delivery of po- ssession. In such a situation it is difficult to believe that the defendant- appellant was a tenant of the mortgagor by it leads towards an irresistible conclusion that he is in possession over the disputed shop as son-in-law of mortgagee as held by both the courts below. It is important to mention that father of defendant-appellant had also signed the usufructuary mortgage deed dated 4.2.75 Ex.2, where in there is recital about delivery of possession to the mortgagee by the mortgagor but the defendant-appellant did not produce him as a witness to disprove the recital of delivery of possession in Ex.2. (9). It is strenuously urged by the learned counsel for the appellant that since the main controversy in the suit was in respect of nature of possession of the defendant-appellant over the shop in dispute hence the concurrent finding of fact recorded by both the courts below relating to nature of possession of the appellant deserves to be reappraised in the light of the Tehrir dated 19.11.74, which is claimed by the plaintiff-respondent No.1 to be forged. According to the learned counsel for the appellant reappraisal of evidence by the High Court in the present facts and circumstances is permissible on the point of possession recorded by both the courts below. In support of his aforesaid contention he placed reliance on a decision rendered by the Apex court reported in AIR 1994 SC 532 (4). (10). As against it the learned counsel for caveator respondent No.1 submitted that the decision cited by the learned counsel for the appellant reported in AIR 1994 SC 532 (supra) is not applicable to the facts and circumstances of the present case. On the contrary he vehemently contended that the controversy involved in this second appeal is covered by a decision rendered by the Apex court reported in AIR 1999 SC 864 (5), where in Honble Mr.S.B. Majmudar, J. speaking for the court ruled in paragraph 11, which reads thus:- ``It has to be kept in view that the learned Single Judge was exercising jurisdiction under Section 100 C.P.C. as it was amended in 1976. A mere look at the said provision shows that the High Court can exercise it jurisdition under Section 100, C.P.C. only on the basis of subs- tantial questions of law which are to be framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. The impugned judgment shows that no such procedure was followed by the learned single Judge. It is held by a catena of Judg- ments by this court, some of them being, Kshitish Chandra Purkait V. Santosh Kumar Purkait, (1997) 5 SCC 438 ; (1997AIR SCW 2459) and Sheel Chand vs. Prakash Chand, (1998) 6 SCC 683 ; (1998 AIR SCW 2923), that the judgment rendered by the High Court under Section 100, C.P.C. without following the aforesaid procedure cannot be sus- tained. On this short ground alone, this appeal is required to be allowed. (11).In the aforesaid decision,the judgment passed by the learned single Judge in second appeal was set aside and the decision of the learned trial court, decreeing the appellants suit and the judgment of affirmance with modification in appeal passed by the first appellate court was restored. (12). It is next contended by the learned counsel for caveator respondent No.1 that concurrent finding of fact recorded by both the courts below on the point of possession is conclusive and final , which is not assailable within the meaning of Sec.100 read with Sec.101 CPC. It is also urged by the learned counsel for caveator- respondent No.1 that burden to prove issue No.3 relating to nature of possession of the disputed shop was on the shoulder of the defendant- appellant, which he failed to discharge. (13). Having carefully gone through the judgments cited before me by learned counsel on both sides I am of the opinion that there is substance in the argument of learned counsel appearing for caveator respondent No.1. (14). In my considered opinion both the courts below have cautiously appreciated the oral and documentary evidence on record and have correctly reached to the conclusion that defendant appellant is in possession over the disputed shop as son-in-law of mortgagee late Shri Dhan Raj Ji and not as a tenant of mortgagor. (14). In my considered opinion both the courts below have cautiously appreciated the oral and documentary evidence on record and have correctly reached to the conclusion that defendant appellant is in possession over the disputed shop as son-in-law of mortgagee late Shri Dhan Raj Ji and not as a tenant of mortgagor. Even assuming that another view is possible on reappraisal of the same evidence in the light of Tehrir dated 19.11.1974 as argued by the learned counsel for the appellant, I decline to do so inasmuch as the learned counsel for the appellant failed to demonstrate before me that the concurrent finding of fact recorded by both the courts below on point of nature of possession of defendant-appellant is based on no evidence on record. It is held that burden of proof to establish issue No.3 was upon the defendant-appellant, which he failed to discharge. It is also held that concurrent finding of fact about nature of possession of the defendant-appellant is a finding of fact which is not assailable in second appeal. (15). In view of above discussion I have no hesitation to hold that the instant second appeal is concluded by concurrent findings of fact. No substantial question of law is involved in it . It is held that the Tehrir executed on 19.11.74, which was held by both the courts below to be inadmissible, is not a vital document having bearing on the merits of the case as it cannot disprove in the above background that the present defendant- appellant Shyam Lal is not in possession over the disputed shop as a son-in-law of the mortgagee late Dhanraj Ji. (16). At this stage the learned counsel for the appellant submitted that the appellant, even if has been carrying on business over the disputed shop as son-in-law of mortgagee and not as a tenant of mortgagor, on humanitarian ground, he may be granted six months time to vacate the shop in dispute. He informed that there is no other source of livelihood for the appellant except the earning from the shop in question. He prays that in these circumstances if a reasonable time is granted to the appellant he may be able to make alternative arrangement of his business. (17). He informed that there is no other source of livelihood for the appellant except the earning from the shop in question. He prays that in these circumstances if a reasonable time is granted to the appellant he may be able to make alternative arrangement of his business. (17). In reply to the last submission of the learned counsel for the appellant, it is brought to my notice by learned counsel for plaintiff respondent No.1, caveator that in pursuant to the preliminary decree under appeal a final decree had been passed and plaintiff-respondent No.1 had already deposited Rs.35,000/- towards payment of money lent by mortgagee under mortgage deed dated 4.2.75 Ex.2. The defendant-appellant has filed an appeal against the final decree before learned District Judge, which is pending consideration. It is urged by him that in such a situation, if any reasonable time is granted to the defendant appellant, he will have to pay mense profits for use and occupation of the shop in question. (18). I have given my anxious consideration to the rival contentions of the lear- ned counsel for the parties. Looking into the totality of the facts and circumstances of the case and also after taking into account humanitarian consideration I think it just and proper in the interest of justice to allow the appellant six months time from today to remain in possession over the disputed shop provided he deposits Rs. 175/- as monthly mense profits for use and occupation of the disputed shop which is made payable on the first day of each English calendar month. The defendant-appellant is also directed to execute an under taking within four weeks from today before the learned trial court to the effect that after remaining in possession over the disputed shop for a period of six months he shall hand over peaceful vacant possession of the shop in dispute to plaintiff-respondent No.1. It is made clear that if the defendant-appellant fails to execute the undertaking before the learned trial court as stated hereinabove, the plaintiff-respondent No.1 would be at liberty to take possession of the shop in dispute in accordance with law. It goes without saying that after dismissal of the present second appeal, the appeal filed by the defendant- appellant before learned District Judge against final decree will become infructuous. With the aforesaid observation this second appeal is hereby dismissed in limine.