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2002 DIGILAW 316 (JK)

Krishan Kumar v. Vikas Gandotra

2002-10-09

B.L.BHAT

body2002
1. This Civil second Appeal is directed against the judgement and decree recorded by the Principal District Judge, Udhampur dated 29.09.2001, whereby appeal of the appellant/defendant came to be dismissed by the trial court in civil original suit titled as Vikas Gandotra Vs. Krishan Kumar came to be confirmed. 2. The facts leading upto this appeal are that a suit for ejectment of the single storey shop located at Bazar Chabutra, Udhampur came to be instituted by the respondent/plaintiff before the learned Munsiff, Udhampur against the appellant/ defendant with the averments that the suit shop which belongs to the respondent/ plaintiff was let out to the appellant/ defendant on monthly rent of Rs. 120/- for a period of 11 months w.e.f. 01.06.1991, in this behalf a rent note dt 06.04.1991 came to be executed; that the contractual tenancy has come to an end but the appellant/ defendant has not delivered back the possession of the suit shop to the respondent/ plaintiff that the appellant/defendant continues to be in a possession of the suit shop as a statutory tenant; that the suit shop is a very old construction which is in delipidated condition likely to collapse any movement, therefore, it needs re-construction. That the respondent/plaintiff intends to construct a new pacca shop after demolishing the suit shop and also want to carve out a stair case as an approach to the first floor of the shop whereupon he want to raise further construction, for this, he has prepared a map and the same has been submitted to the Town Area Committee, Udhampur for sanction; that for meeting the costs of the proposed construction, the respondents plaintiff is capable of raising loan from his parents and other relations; that the suit shop is reasonably and bonafidely required for re-construction in as much as accommodation will be increased by converting it into a double storey structure which can be used by the plaintiff and will also avoid likelihood of the danger to the property and public life as such the proposed construction shall be in the public interest. That the respondent/ Plaintiff in order to settle himself in life requires the suit shop for starting his own business. That the respondent/ Plaintiff in order to settle himself in life requires the suit shop for starting his own business. The appellant/defendant has resisted the suit by filing the written statement, wherein he has disputed the reasonable and bonafide requirement of the suit shop by the respondent/plaintiff for re-construction or rebuilding by stating that all necessary repairs in the suit shop has been carried out by him at the instance of the father of the plaintiff. He has also disputed the reasonable and bonafide requirement of the plaintiff for starting his own business in the suit shop. 3. The parties went to the trial with the following issues:- (i) Whether the plaintiff reasonably and bonafidely requires the suit shop for re-construction purposes? O.P.P (ii) In case issue No.1 is proved in affirmative whether the proposed reconstruction shall be in the public benefit? O.P.P (iii) Whether the plaintiff reasonably and bonafidely requires the suit shop for his own personal use and occupation? O.P.P (iv) In case issue No.3 is proved in affirmative what shall be comparative advantage and disadvantage of the parties? O.P.P (v) In case of ejectment on the ground of personal necessity whether the partial eviction from the suit shop can meet the requirement of the plaintiff and if so, whether the defendant is willing and ready for the same? O.P.P (vi) Relief.� 4. The evidence both oral and documentary came to be offered by the parties before the trial court who came to the conclusion that the need of the respondent/plaintiff for building and re-building the suit shop is both reasonable and bonafide and the proposed construction shall be in the public benefits after holding that the suit shop needs re-construction that for carrying out the reconstruction, the respondent/plaintiff has submitted the map of the proposed construction in this behalf to the Town Area Committee, Udhampur; that the suit shop is in the Bazar where the shops in the Bazar are also existing at the same level and that he has a capacity to raise money for re-construction of the shop in question. The learned trial court also came to the conclusion that the requirement of the respondent/ plaintiff for the suit shop for his pesonal use and occupation is also bonafide and reasonable. The learned trial court also came to the conclusion that the requirement of the respondent/ plaintiff for the suit shop for his pesonal use and occupation is also bonafide and reasonable. Accordingly, the trial court came to decree the suit after deciding all the issues in favour of the respondent/plaintiff by virtue of his judgement and decree dated 23.8.1999. This judgement and decree recorded by the trial court came to be challenged before the Ist Appellate court who on the consideration of the points raised before him in the appeal to the effect that the requirement of the suit shop is not established; that under the prevention of Ribbon Development Act which extends to the town of Udhampur where the suit shop is located no construction can be raised within 25 fts from the centre of the road, therefore, if the suit shop is re-constructed, the size of it will get reduced therefore no public benefit shall be served; that the plaintiff does not require the suit shop for his personal use and the judgement and decree impugned is based on wrong appreciation of evidence. On re-appreciation of the evidence led by the parties before the trial court, the First Appellate Court came to concurr with the trial court to the effect that the suit shop is reasonably and bonafidely required by the respondent/plaintiff for reconstruction after holding that the respondent has already submitted the map of the proposed construction to the Town Area Committee, Udhampur for sanction which lends support to the intention of the respondent/ plaintiff to raise Ist Floor after demolishing the suit shop and that since the respondent/plaintiff has submitted the map for sanction the N.A.C Udhampur, therefore under section 46-A of the Town Area Act, sanction shall be deemed to have been granted and that Respondent/plaintiff has sufficient funds to raise the construction, besides that, he can approach the commercial bank for raising loan. While dealing with the point that the prevention of Ribbon Development Act stands extended to the town of Udhampur, the Ist Appellate Court has observed that this plea is neither taken in the written statement nor any evidence has been led regarding this aspect of the case. While dealing with the point that the prevention of Ribbon Development Act stands extended to the town of Udhampur, the Ist Appellate Court has observed that this plea is neither taken in the written statement nor any evidence has been led regarding this aspect of the case. The Ist Appellate Court has also came to over-set the finding of the trial court on issue No 3 after holding that it is an admitted fact that the respondent/plaintiff during the pendency of the case has secured a government job and is posted in the office of the Deputy commissioner for the last more than a year. Therefore, the requirement of the respondent/ plaintiff for his personal use and occupation of the suit shop cannot be said to be in existence after he has taken government job. In the end learned Ist Appellate Court after re appraisal of the evidence led by the parties, came to decide all the points except the Issue No.3 in favour of the respondent/plaintiff and came to dismiss the appeal. The respondent/ plaintiff has assailed the finding of the Ist Appellate Court with regard to Issue No.3 by filing Cross objections before this court. This judgment and order shall dispose of both the appeal in hand and the cross objection together. 5. Heard the learned counsel for the parties and perused the record. In the memorandum of appeal the appellant has proposed the following question of law: (i) Whether the judgment of the court below suffering from mis appreciation and non-appreciation of evidence on record, constitutes substantial question of law and deserve to be decided by the 2nd appellate court under section 100 Cr. P.C. (ii) Whether the courts in deciding the matters in suits can waive the statutory requirements of law with wrong tests i.e conditions of Muncipal Act, Town planning and other requisites for the purposes of reconstruction. (iii) Whether to claim a possession of suit property for reconstruction purposes, the landlord is not required to disclose his reasonable financial capability to carry the construction plan commensurating to its value. (iv) Whether the courts below (both trial and Ist Appellate Court) could conclude their findings even by travelling beyond the pleadings and evidence on record in perversity? (v) Whether the enforcement of the provisions of sec. (iv) Whether the courts below (both trial and Ist Appellate Court) could conclude their findings even by travelling beyond the pleadings and evidence on record in perversity? (v) Whether the enforcement of the provisions of sec. 13(3) of the J&K House and Shops Rent Control Act, protecting the tenant for re-entry prior offer to tenant by the landlord after reconstruction within time frame is sine quo non, while deciding the case by the courts below when the personal necessity of landlord is missing and whether the courts below fell in serious error in having the matter undecided? 6. As regards the points 1 to 4 it is pointed out that the repondent/ plaintiff and his witnesses PWs Krishan lal Bansi Lal, Ram Krishan, Sham Lal who is civil Engineer and Ashok Abrol who is also Jr. Engineer in the public works Departments have with one voice deposed that the suit shop is a Kachha old construction and PWs, Krishan lal Bansi Lal and Ram Krishan have further deposed that it needs re-construction, otherwise it will collapse. This version of the plaintiff™s evidence finds corrobration from the evidence of the defendant and DW Chuni Lal. It is also given in the evidence of the plaintiff and said witnesses that the respondent/plaintiff wants to re-construct the building on the suit shop and wants to convert it into First Floor building. It is also proved by the evidence of the plaintiff and his witness Vijay Kumar who is Clerk in the Town Area Committee, Udhampur and the certificate marked as ExPWVK placed on the file by the plaintiff alongwith themap for the proposed construction for grant of sanction in which title vertication stands sought as early as in the year 1982 stands submitted to the N.A.C Udhampur much early to the institution of the suit. Section 46 of the Town Area Act is very clear on the point that if the Chairman of the Committee neglects or omits, within sixty days of the receipt from any person of a valid notice of such person™s intention to erect or re-erect any building the sanction for such erection or re-erection shall be deemed to have been sanctioned. Section 46 of the Town Area Act is very clear on the point that if the Chairman of the Committee neglects or omits, within sixty days of the receipt from any person of a valid notice of such person™s intention to erect or re-erect any building the sanction for such erection or re-erection shall be deemed to have been sanctioned. With respect to financial capacity of the plaintiff to carry out the re-construction after demolishing the suit shop there is evidence on the File while stands duly considered by the Courts below especially by the Ist Appellate Court after recording observation that the respondent is a government employee and can also raise the loan, therefore, his financial capacity to raise proposed construction cannot be doubted. 7. From the perusal of the record of the case the findings recorded by the courts below are based on clear and cogent evidence and are in no way discrepant. It is well settled proposition of law that where finding of facts of the trial court are confirmed by the Ist Appellate Courts, the High Court cannot substitute his own finding or re-appreciate the evidence. So far as last point raised by the appellant is concerned same is pre-matured in terms of section 13 of the J&K Houses and shops Rent Control Act, because the decree passed by the trial court has not upto this date attained it finality. Therefore, none of the aforesaid points raised. In the memorandum of appeal can be said substantial question of law which needs determination in civil 2nd Appeal. 8. In the present case, both the courts below as indicated have taken a view and have reached to the clear finding of facts that the suit shop is in delipidated condition which may collapse any movement causing threat both to the property and to the human life. That the requirement of the respondents/ plaintiff for re-construction of the suit shop is both bonafide and reasonable which shall be in the public benefits. That the plaintiff has much early to the institution of the suit submitted a map of proposed construction to the Town Area Committee Udhampur for sanction and the sanction in this behalf shall be deemed to have been granted. That the respondent/ plaintiff has and can raise the funds for demolishing and re-constructing of the suit shop. That the plaintiff has much early to the institution of the suit submitted a map of proposed construction to the Town Area Committee Udhampur for sanction and the sanction in this behalf shall be deemed to have been granted. That the respondent/ plaintiff has and can raise the funds for demolishing and re-constructing of the suit shop. The plea that under the prevention of Ribbon Development Act, a person who intends to raise contruction alongside any road maintained by the public works Department or any other government department can do so after leaving a specified distance from the centre of the road. This being so, this plea is factual in nature cannot be decided without appreciation of evidence. This plea has not been raised by the appellant in tis written statement before the trial court, there is no issue in this behalf framed in the suit nor any evidence has been led by the parties. There are catena of authorities on the point that High Court will not entertain the point of law raised for the first time in the Civil 2nd Appeal when the point cannot be decided without remanding the case for further evidence. There is no manner of doubt that High Court can exercise its jurisdiction under section 100 CPC only on the basis of substantial question of law. The question as to whether the finding of facts recorded by the court below is against the weightage of evidence or not, is a question which will remain in the realm of appreciation of evidence and cannot be said to be a substantial question of law. (See AIR 1999 SCW 529). 9. Viewed thus, no question of law much less any substantial question of law is raised in this memorandum of appeal, therefore, the same is liable to be dismissed, consequently the cross objection filed by the respondent/ plaintiff pale into insignificance. 10. Therefore, the appeal and the cross objection are dismissed. However, the parties will bear their own costs. Record of the case together with copy of this judgement be returned to the court below ordered accordingly.