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2002 DIGILAW 1893 (ALL)

MAJNOO v. TARA CHAND

2002-12-12

S.P.SRIVASTAVA

body2002
S. P. SRIVASTAVA, J. ( 1 ) HEARD the learned counsel for the parties. ( 2 ) PERUSED the record. ( 3 ) FEELING aggrieved by the decree of the first appellate court, whereby allowing the defendants appeal, the decree passed by the trial court in favour of the plaintiff has been reversed, the plaintiff-appellant has now approached this Court in second appeal seeking redress praying for the setting aside of the decree passed by the first appellate court and restoration of the decree passed by the trial court. ( 4 ) A learned single Judge had, vide the order dated 16. 9. 1996, framed the following substantial questions of law which were found to have arisen in this appeal for consideration : (i) Whether, the appellate court came to a proper finding regarding the application of the U. P. Act No. 13 of 1972 in the facts of the present case. (ii) Whether, on the facts of the case, it could have been inferred that the lease was for manufacturing purpose. ( 5 ) THE facts in brief shorn of detail and necessary for the disposal of this case lie in a narrow compass. ( 6 ) THE suit giving rise to this appeal had been filed on the allegations, inter alia, that the defendant Tara Chand was a tenant of an open piece of land which formed part of the Premises no. 26/141 situate at Sultanganj, Agra, which had been let out to him at a rent of Rs. 35 per month. The tenancy was a month-to-month tenancy according to the English Calendar month. The tenancy had been terminated vide the combined notice dated 20. 5. 1978 but as in spite of the notice terminating the tenancy, the defendant had neither vacated the premises nor cleared of the arrears, hence the suit. ( 7 ) THE plaintiff had prayed for a decree for the eviction of the defendants from the land in dispute and for the recovery of arrears of rent and damages for use and occupation. ( 8 ) THE aforesaid suit was contested by the defendant on various grounds. The service of notice was denied. It was asserted that the defendant was not a defaulter in the payment of rent. ( 8 ) THE aforesaid suit was contested by the defendant on various grounds. The service of notice was denied. It was asserted that the defendant was not a defaulter in the payment of rent. In paragraph No. 9 of the written statement, the defendant asserted that the property No. 26/149 sultanganj, Agra, which has been let out to him comprised of a piece of land covered by tin-sheds and chappar. It was also claimed that the property had originally been let out to the defendant by Sri Chokhey Lal in the year 1970. Chokhey Lal was one of the co-owners and by mutual arrangement between the plaintiff and Chokhey Lal, the defendant was paying rent regularly to the plaintiff. Various other pleas were also raised including the plea to the effect that the suit was barred by Section 20 of the Uttar Pradesh Urban Buildings (Regulation of Letting, rent and Eviction) Act, 1972 (U. P. Act No. 13 of 1972 ). ( 9 ) THE parties led oral as well as documentary evidence in support of their respective cases. ( 10 ) SINCE the dispute had been raised in respect of the nature of the tenement which according to the plaintiff was an open piece of vacant land, but according to the defendant, it was covered by tin sheets and chhappar, the main question which arose for determination was as to whether the provisions contained in the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and eviction) Act, 1972, could be deemed to be attracted and the civil court was competent to entertain and grant any decree as prayed for by the plaintiff in view of the bar contained in section 20 of the aforesaid Act. ( 11 ) THE plaintiff besides examining himself as a witness had examined Ram Prasad as P. W. 2. In his deposition recorded before the trial court, he had asserted that at the time when the letting had taken place, the land in dispute was an open piece of land and no construction existed thereon. In support of his case, reiterated in his deposition before the trial court, the plaintiff further relied upon the counter foils of the rent receipts which were duly signed by the defendant himself and contained the description of the land which had been let out indicating the same to be open piece of land. The counterfoils Ex. In support of his case, reiterated in his deposition before the trial court, the plaintiff further relied upon the counter foils of the rent receipts which were duly signed by the defendant himself and contained the description of the land which had been let out indicating the same to be open piece of land. The counterfoils Ex. 2 to Ex. 21 were proved by the plaintiff himself. The defendant, who had examined himself as D. W. 1 in his deposition recorded before the trial court on 9. 4. 1980 in the cross-examination had asserted that, "main apney dastkhat pahchanta him. Kagaj No. 29a ki raseed Nos. 1, 2, 6, 7, 8, 9, 11, 12, 13, 16, 17, 21, 23, 24, 27, 29, 32, 35 aw 38 per merey dastkhat hain, jiski main shinakht karta hoon. " These included the counterfoils Ext. 2 to Ext. 21 relied upon by the plaintiff. ( 12 ) THESE rent receipts contained an endorsement that the land which had been let out to the defendant Tara Chand was an open piece of land. ( 13 ) THE trial court after carefully considering the evidence led by the parties came to the conclusion that the plaintiffs statement, who was examined as P. W. 1 was reliable and acceptable. The defendants evidence was found to be not worthy of credence. It was found that at the time when the letting had taken place, the land in dispute was an open piece of land. ( 14 ) THE trial court came to the conclusion that since there was no building on the land in dispute and it was an open piece of land, the provisions of the Rent Control Act could not be deemed to be attracted. ( 15 ) IN the aforesaid view of the matter, upholding the validity of the notice terminating the tenancy and accepting the case of the plaintiff, the trial court had decreed the suit as prayed for. ( 16 ) THE first appellate court, however, vide the impugned judgment and decree while allowing the appeal and setting aside the decree of the trial court had dismissed the suit holding that Exs. ( 16 ) THE first appellate court, however, vide the impugned judgment and decree while allowing the appeal and setting aside the decree of the trial court had dismissed the suit holding that Exs. 2 to 21 which contained the endorsement with regard to the nature of the land in dispute in the year 1970 and thereafter, could not be relied upon as the trial court had acted as an expert and itself had compared the signature of the defendant Tara Chand. In such circumstances, the first appellate court found that the defendant could not be bound by the recital contained in Exs. 2 to 21. ( 17 ) IT may be noticed that the trial court had compared the signatures of the defendant occurring on paper No. 17ka, which document contained an admission of the defendant ; from his signatures occurring on Exs. 2 to 21 in order to come to a conclusion as to whether the paper No. 17ka could be relied upon or not? It was on the basis of the aforesaid comparison that the trial court, apart from Exs. 2 to 21 had taken into consideration paper No. 17ka also which was yet another documentary evidence, which proved the case of the plaintiff and negatived that of the defendant. Before the trial court, it was admitted that Exs. 2 to 21 did contain the signature of the defendant and there was no dispute in this regard. ( 18 ) AS has already been indicated hereinabove, the defendant had in clear and categorical terms had admitted the genuineness of his signatures occurring on the Exs. 2 to 21. The finding of the first appellate court to the effect that the aforesaid Exhibits with the recitals contained therein could not be utilized against the defendant is totally perverse and no reasonable person could reach such a conclusion. ( 19 ) IT may further be noticed that the trial court had chosen not to place reliance on the deposition of the witness Babu Lal examined by the defendant as D. W. 2. The trial court had given cogent reasons for holding him to be unreliable, as the witness had deliberately made false statement. So far as the false statement was concerned, the first appellate court observed that the witness had not been confronted with his earlier statement. The trial court had given cogent reasons for holding him to be unreliable, as the witness had deliberately made false statement. So far as the false statement was concerned, the first appellate court observed that the witness had not been confronted with his earlier statement. This observation is also totally against the record as the plaintiff had filed a certified copy of the deposition of Babu Lal dated 8. 8. 1974 is Suit No. 276 of 1972. The certified copy of the statement was brought on record, along with an application dated 19. 4. 1980, to demonstrate that Babu Lal was inimical to the plaintiff and he had previously appeared as a witness against the plaintiff in Suit No. 276 of 1972, Majnoo v. Chokhey Lal, and he was making a false statement. ( 20 ) IT may be further noticed that after going through the deposition of the defendant himself, the trial court had come to the conclusion that the rent receipts paper Nos. 32 to 41 filed by the defendants on which Ex. A-1 to Ex. A-10 had been put, were not liable to be read in evidence as in face of the admission of the defendant himself, the signatures of Majnoo and Chokhey appearing thereon could not be deemed to have been proved as he had refused to recognize them to be that of Majnoo or Chokhey Lal. ( 21 ) THE first appellate court, however, without reversing the findings of the trial court on the aforesaid aspect had relied upon Ex. A-1 to Ex. A-10 and had come to a conclusion that at the time when the letting had taken place, it was not the vacant land but an accommodation with chhappar had been let out. This finding is in the teeth of the admission of the defendant himself contained in not only Ex. 1 but also Exs. 2 to 21 which admission could not be explained away in any manner. In this connection, it may be noticed that defendant himself had filed a suit being suit No. 371 of 1989. The plaint of the aforesaid suit had been brought on record. Along with the plaint, a site plan had been filed showing the land, which is now in dispute in the present case. The aforesaid site plan brought on record as Ex. The plaint of the aforesaid suit had been brought on record. Along with the plaint, a site plan had been filed showing the land, which is now in dispute in the present case. The aforesaid site plan brought on record as Ex. 23 shows the land in dispute involved in the suit giving rise to this appeal as a vacant piece of land. ( 22 ) ALL these aspects had been taken into consideration by the trial court. ( 23 ) THE learned counsel for the respondent has strenuously urged that the trial court could not act as an expert. So far as the expert evidence is concerned, it is always an opinion evidence. The expert witness is expected to put before the Court all the materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court, although not an expert may form its own judgment on these materials after giving due regard to the experts opinion and once the experts opinion is accepted, it is not the opinion of the expert but of the Court. ( 24 ) THE Apex Court in its decision in the case of Fakhruddin v. State of M. P. , 1967 SC 1326, had clearly indicated that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness. It is, therefore, obvious that in case the similarities or the peculiar feature of a signature are so apparent and visible even to a naked eye, that satisfaction can be recorded by the Court without any aid of an expert, the findings returned on its own visual observation in such situation cannot be faulted specially when, as in the present case, the signature in question could without any difficulty be examined in order to record the satisfaction and arrive at a conclusion. The findings of the trial court, therefore, were not liable to be disturbed for the alleged omission to examine an expert witness. The findings of the trial court, therefore, were not liable to be disturbed for the alleged omission to examine an expert witness. ( 25 ) IT may further be noticed that the Apex Court in its decision in the case of Santosh Hazari v. Purushottam Tewari, 2001 (1) AWC 824 (SC) : 2001 (1) JLJ 401 , rendered by a Bench of three honble Judges had indicated that the phrase substantial question of law, as occurring in the amended Section 100 of the C. P. C. is not defined in the Code. However, it was pointed out that the word substantial, as qualifying question of law means, of having substance, essential, real, of sound worth, important or considerable. It was further pointed out that it is to be understood as something in contradistinction with-technical, of no substance or consequence, or academic merely. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. ( 26 ) IN its aforesaid decision, the Honble Supreme Court had also pointed out that while writing a judgment of reversal, the first appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same presiding Judge, who authors the judgment. This certainly does not mean, it was pointed out, that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law, if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. As a matter of law, if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. The rule is--and it is nothing more than a rule of practice--that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witness, then unless there is some special feature about the evidence of a particular witnesses which has escaped the trial judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact. It was also pointed out that while reversing a finding of fact, the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. ( 27 ) IN the present case, I have no hesitation in coming to the conclusion that the appellate court did not discharge the duty cast upon it as a court of first appeal and its wrong approach and omission to consider the vital evidence and admissions of the defendant going to the root of the matter resulted in manifestly erroneous conclusions rendering the impugned judgment vitiated in law. ( 28 ) CONSIDERING the facts and circumstances as brought on record, the findings of the trial court holding that the provisions of the Rent Control Act could not be deemed to be attracted as the land in dispute did not constitute an accommodation or a building being only an open piece of vacant land at the time of the letting was not liable to be disturbed. ( 29 ) THE first substantial question, referred to above, deserves to be answered in favour of the plaintiff and against the defendant. ( 30 ) SO far as the second substantial question of law is concerned, suffice it to say that the trial court has found the tenancy to be month to month and this finding has not been upset by the first appellate court. ( 30 ) SO far as the second substantial question of law is concerned, suffice it to say that the trial court has found the tenancy to be month to month and this finding has not been upset by the first appellate court. The plaintiffs case which has been believed is that the above piece of land had been let out to the defendant for tethering cattle. No manufacturing process was being carried on by the defendant in the land in dispute. ( 31 ) THE other substantial question of law also deserves to be answered in favour of the plaintiff and against the defendant. ( 32 ) IN view of the above, sufficient ground has been made out for interference by this Court. ( 33 ) ACCORDINGLY, this second appeal succeeds and the impugned judgment and decree passed by the first appellate court is set aside. The decree of the trial court is restored. ( 34 ) THERE shall, however, be no order as to costs. .