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Madhya Pradesh High Court · body

2000 DIGILAW 57 (MP)

Purshottam v. Rajendra Kumar Sen

2000-01-14

R.B.DIXIT

body2000
JUDGMENT 1. Feeling aggrieved by judgment and decrec dated 11.71996 passed in Civil Appeal No. 20A/39 by Third Additional Judge to the Court of District Judge. Gwalior the plaintiff-appellant has come up in this second appeal praying for restoration of the judgment and decree dated 28.7.93 passed by 10th Civil Judge Class-II Gwalior in Civil Suit No. 263A/91. 2. The plaintiff-appellant had filed a suit for eviction against respondent-defendant on the averments that defendant is the tenant of the plaintiff's house from the time of his predecessor, Shri Afle, from whom he has purchased the suit property by registered sale-deed dated 10.4.1981. It was further averred that prior to the purchasing of the house, he was living in a tenanted house. The house is in a dilapidated condition and it can fall at any time. The roof of the tenanted premises stands cracked at various places. The defendant is a bad pay master and had not paid the rent since the time of his predecessor and while purchasing the house by the plaintiff-appellant vide the sale-deed itself there was a recital that the defendant has not paid the rent since 1.10.80 and. therefore, the plaintiff would be entitled to recover the same. 3. The defendant-respondent denied the plaint averments and inter alia pleaded that the transaction of sale is a shame transaction and had been arrived at only because Shri Afle was not legally entitled to get the defendant from the house evicted. Bonafide need of the plaintiff\vas also denied. 4. The learned trial Court after recording evidence of both the parties found that the plaintiff is entitled to get eviction decree against the defendant on both the counts of hold fide need as well as for reconstruction and repairs of the house. The trial Court further found the defendant in arrears of rent since 1.10.1980 and accordingly decreed the suit of the plaintiff-appellant. 5. On an appeal being preferred by the respondent-defendant before the appellate Court referred hereinabove, the learned 1st Appellate Court came to the conclusion that the bona fide need of the plaintiff is not properly proved. Similarly it was further held that though defendant has admitted dilapidated condition of the house, but for a decree of eviction on this ground. 5. On an appeal being preferred by the respondent-defendant before the appellate Court referred hereinabove, the learned 1st Appellate Court came to the conclusion that the bona fide need of the plaintiff is not properly proved. Similarly it was further held that though defendant has admitted dilapidated condition of the house, but for a decree of eviction on this ground. the requirements as laid down under the provisions of Section 12(7) of the M.P. Accommodation Control Act are not proved The learned 1st Appellate Court also came to the conclusion that the plaintiff is riot entitled for arrears of rent from the Year 1980, but he is entitled to get the arrears from 10.4.81 Accordingly, the 1st Appellate Court allowed the appeal and dismissed the suit of the plaintiff. 3. This second appeal has been admitted on the following substantial questions of law: (i) "Whether in the absence of any pleading in the written statement that the plaintiff has constructed some room and is in possession of six rooms. this findings that the plaintiff possesses sufficient accommodation are proper'.'" (ii) "Whether in the absence of pleadings and evidence on record, the bona fide need of plaintiff can be negatived on the ground that the plaintiff has acquired possession of six rooms?" 7. The learned counsel of the appellant-plaintiff has strenuously argued that the 1st appellate Court has made out a new case for the defendant to dismiss the suit of the plaintiff on a ground, which was altogether missing from the pleadings as raised in the written statement. It has been further argued for the appellant that the learned Appellate Court has placed wrong burden of proof on the plaintiff-appellant by which justice has suffered, It is only in statement of defendant Rajendra Prasad (DW 1) that the fact of construction of six rooms by the plaintiff had appeared first time in the case for which in absence of pleadings in the written statement the plaintiff got no chance of rebuttal. 8. 8. The learned counsel of the respondent-defendant relied on a decision of this Court rendered in case of Ramrichhpal and another v. Jugal Kishore and another reported in 1973 JLJ SN 105 wherein it was observed that the plaintiff-respondents who were in possession of two rooms in the ground floor and to rooms and a terrace in the first floor, instituted a suit for eviction of the defendants on the ground of bona fide need under Section 12(1)(e) of the Accommodation Control Act. The contention of the defendants was that the finding on the question of need is erroneous in law as the lower appellate Court failed to consider whether the accommodation in possession of the plaintiffs was sufficient for their need. Plaintiff Jugal Kishore in his examination-in-chief had stated that his possession is not sufficient for residence, but he could not explain as to how three rooms of the ground floor and two rooms of the 1st floor will not be sufficient for the residence of the three persons. In the circumstances, bona fide need is not made out. However, in this case also, the finding arrived at by the first appellate Court is not merely based on the evidence of defendent but after considering the evidence of both the parties as a whole that the bono fide need of the appellant-plaintiff was not found proved. In the circumstances, the finding as returned by the 1st appellate Court of bono fide need cannot be disturbed merely on the ground that the piece of evidence relied upon was not raised in the pleadings of the parties. 9. The plaintiff-appellant Purshottam (PW 1) had admitted in his statement before the Lower Court that he is in possession of three rooms and a kitchen Further he has also admitted that in ground floor he has constructed two rooms and one room on 1st floor. Thus in total he is in possession of six rooms. In the circumstances. When the plaintiff himself has admitted in his statement possession of six rooms and further failed to prove as to how this accommodation is not sufficient for his residence. no decree for eviction on the ground of bono fide need would have been passed against defendant-respondent even in absence of proof or pleading on his part. 10. In the circumstances. When the plaintiff himself has admitted in his statement possession of six rooms and further failed to prove as to how this accommodation is not sufficient for his residence. no decree for eviction on the ground of bono fide need would have been passed against defendant-respondent even in absence of proof or pleading on his part. 10. The learned counsel of the respondent-defendant has relied upon a decision of Single Judge of this Court in the case of Gopal Kishore Makon v. Shri Subhash Chandra Verma reported in 1996 (II) MPWN 228 and Shanti Bai v. Namomal Sindhi, 1996 (2) Vidhi Bhasvar 113, wherein it has been held that in an eviction suit plaintiff should plead and prove fact of alternative accommodation else his suit would fail. In case of Gopal Kishore Makan (supra), it was further held that existence of suitable alternative accommodation and bona fide requirement both are questions of fact and. therefore cannot be challenged in 2nd appeal. 11. The Apex Court in its decision rendered in the case of Kondiba Dogadu Kadam v. Savitribai Sopan Gujar reported in AIR 1999 SC 2213 has observed that the substantial question of law had to be distinguised from a substantial question of fact. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact being the 1st appellate Court. It is true that the lower appellate Court should not ordinarily reject witnesses accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial Court the same is no ground for interference in second appeal when it is found that the appellate Court has given satisfactory reasons for doing so, In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate Court is binding on the High Court in second appeal. 12. From the facts and circumstances as brought out on record, there is no reason to disbelieve the finding arrived at by the learned 1st appellate Court in so far as the question of bona fide need of the plaintiff-appellant is concerned. Accordingly, no substantial questions of law are involved in this second appeal. 12. From the facts and circumstances as brought out on record, there is no reason to disbelieve the finding arrived at by the learned 1st appellate Court in so far as the question of bona fide need of the plaintiff-appellant is concerned. Accordingly, no substantial questions of law are involved in this second appeal. However, the substantial questions of law as formed by this Court are answered as follows: (1) The findings of sufficient accommodation in possession of the plaintiff-appellant by the 1st appellate Court are based on proper appreciation of evidence and it is not suffered on account of absence of any pleadings in written statement to this effect: (2) Since plaintiff himself has admitted possession of six rooms, there is sufficient evidence on record to negative the finding of bona fide need of the plaintiff. 13. For the reasons stated hereinabove, this appeal fails and dismissed accordingly.