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2005 DIGILAW 184 (JHR)

Budhan Sharma v. Nizam Sheikh

2005-02-28

N.N.TIWARI

body2005
ORDER N.N. Tiwari, J. 1. The tenants are the defendants-appellants. This appeal is against the judgment and decree of affirmance passed in Title (Eviction) Appeal No. 1 of 1994. 2. The respondent-plaintiff filed suit for eviction against the defendants on the ground of default in payment of rent and personal necessity. 3. The defendants contested the suit stating, inter alia, that there is no relationship of landlord and tenant between the parties and thus there was no question of any default in payment of rent or eviction on the ground of personal necessity of the plaintiff. The trial Court, on the basis of the pleadings of the parties, framed several issues. Both the parties led oral as well as documentary evidences. Learned trial Court considered and discussed the facts, materials and evidences on the record, and came to the conclusion that there is relationship of landlord and tenant between the parties, the defendant is the tenant on a monthly Rent of Rs. 30/- per month and that he has defaulted in payment of rent. The trial Court further held that the plaintiff has got bona fide necessity of the suit premises for his own use and occupation owing to expansion of his family. The trial Court thus decreed the suit in favour of the plaintiff, both for eviction as well as for realization of arrears of rent from the defendants. 4. The tenant-appellant then filed an appeal being Title (Eviction) Appeal No. 1 of 1994. The said appeal was finally heard and decided by the First Additional District Judge, Rejmahal by the impugned judgment and decree. The first appellate Court after hearing the parties, appraised the evidences on record and came to the findings of fact that there was relationship of landlord and tenant between the parties and that the defendant defaulted in payment of rent. It was also held that the plaintiff required the suit premises for personal need though not required in the circumstances of the case. The lower appellate Court has also considered and held that the partial eviction of the suit premises will not fulfill the need of the plaintiff. The lower appellate Court thus dismissed the appeal. 5. Mr. It was also held that the plaintiff required the suit premises for personal need though not required in the circumstances of the case. The lower appellate Court has also considered and held that the partial eviction of the suit premises will not fulfill the need of the plaintiff. The lower appellate Court thus dismissed the appeal. 5. Mr. Rajeeva Sharma, learned senior counsel appearing on behalf of the appellants assailed the judgments and decree of the Courts below on the ground (i) that the findings arrived at by the Courts below on the relationship between the parties is vitiated, as both the Courts below have failed to properly appreciate the evidences adduced on the point: (ii) that the plaintiff has to prove his case, but in the instant case, the Courts below have erroneously come to the finding that the defendant has failed to establish that the plaintiff has constructed the suit premises over Plot No. 178 and, thus, failed to prove his own light and title over the said plot. 6. After hearing the parties and considering the submissions made by the learned Counsel, I find that there is no substance in the said contention of the learned Counsel for the appellants. The Courts below alter thorough discussion and proper scrutiny of the evidences and materials on record, have come to the finding that there is relationship of landlord and tenant between the parties. The said findings of fact is based on appraisal of evidences and materials on record. So far as the second point is concerned, I find that the defendant had set up a case that they reside in premises located over Plot No. 178 which was acquired by them and they have constructed the house and they are the owners of the said plot. The said case set up by the defendants was to be proved by them, but they failed to bring any evidence to substantiate the same. The Courts below have rightly concluded that the defendants have failed to prove their case and that the plaintiff has been able to establish the relationship of landlord and tenant between the parties and has also proved the default of the defendant in paying monthly rent and the need of the premises. 7. The Courts below have arrived at concurrent findings of facts on appraisal of evidences. 7. The Courts below have arrived at concurrent findings of facts on appraisal of evidences. This Court cannot reappraise evidences and substitute its own findings of fact in exercise of its second appellate jurisdiction, I find no ground giving rise to any substantial question of law to be framed and decided by this Court. This Appeal is, accordingly, dismissed, 1 A. No. 2199 of 2005. In view of the order passed in the appeal, this LA. becomes infructuous, and, is accordingly rejected.