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2006 DIGILAW 117 (JHR)

Jagdish Prasad v. Deoki Devi

2006-02-15

N.N.TIWARI

body2006
ORDER Narendra Nath Tiwari, J. 1. This appeal by the tenant-defend ant has been preferred against the judgment and decree of reversal passed by the Additional District Judge-I, Chaibasa in the Eviction Appeal No. 4 of 2000. 2. The plaintiff-respondent filed the suit in the Court of Munsif, Chaibasa for eviction of the defendant from the suit premises on the ground of personal necessity and default in payment of rent. The defendant appellant appeared and contested the suit contending, inter alia, that there is no relationship of landlord and tenant between the parties and that he has not defaulted in payment of rent. The defendant also denied the plaintiffs claim of personal necessity. 3. It was further pleaded that the plaintiff claimed ownership of the suit premises on the basis of his alleged purchase of the premises in the month of June 1995. No notice of transfer of ownership by the ex-landlady was served on the defendant and as usual, he had sent the rent for the month of June 1995 and July 1995 to the ex-landlady Bullu Rani Dutta, but she refused to accept. Therefore, rent for the month of June 1995 and July 1995 was sent to the said ex-landlady on 31.8.1995 through money order but the same was also refused. The defendant then remitted the rent for the month of June 1995 to August 1995 on 8.9.1995 through money order but the same was also refused by the ex- landlady. The defendant thereafter inquired about the reasons and came to know that the said Bullu Rani Dutta had transferred the suit premises in favour of the plaintiff. The defendant then approached the plaintiff with the rent of September 1995, but the plaintiff refused to accept the same. The defendant again sent rent for the month of September 1995 to the plaintiff by money order which also was not accepted. The defendant since thereafter had been remitting the rent by postal money order to the plaintiff, but the same were refused by the plaintiff. The defendant thus denied the default in payment or rent by the plaintiff as also plaintiffs claim of personal need. 4. The defendant since thereafter had been remitting the rent by postal money order to the plaintiff, but the same were refused by the plaintiff. The defendant thus denied the default in payment or rent by the plaintiff as also plaintiffs claim of personal need. 4. On the basis of the pleadings of the parties, learned trial Court framed several issues after considering the materials and evidences on record, decided issue No. 3 regarding relationship of landlord and tenant between the parties in favour of the plaintiff and held that there was relationship of landlord and tenant between them. However, observing that there was no documentary evidence that transfer of the suit premises made in the month of June 1995 in favour of the plaintiff, was made known to the defendant, learned trial Court held that the fact of transfer came to the knowledge of the defendant in September 1995 and as such, defendant had no liability to pay rent of the preceding months to the plaintiff in absence of any such information. Learned Court thus held that there was no default on the part of the defendant in payment of rent and decided the said issue against the plaintiff. Learned trial Court also held that plaintiff failed to prove her personal necessity of the suit premises and that partial eviction of the suit house will not cater to the need of the plaintiff. With the said findings, learned trial Court decreed the suit in part in favour of the plaintiff, regarding the arrears of rent, but refused to grant decree for eviction. 5. The plaintiff-respondent (herein) then filed eviction appeal in the Court of District Judge, Chaibasa being Eviction Appeal No. 4 of 2000. The said appeal was heard and decided by the Additiorral District Judge-I, Chaibasa by the impugned judgment and decree. The learned lower appellate Court, in view of the grounds made in the appeal, himself appraised the facts, evidences and materials on record and framed two points for consideration and determination : (i) whether the defendant is defaulter in the eye of law? (ii) whether the plaintiffs need of the suit premises is reasonable and bona fides? The learned lower appellate Court, in view of the grounds made in the appeal, himself appraised the facts, evidences and materials on record and framed two points for consideration and determination : (i) whether the defendant is defaulter in the eye of law? (ii) whether the plaintiffs need of the suit premises is reasonable and bona fides? Learned Court of appeal below thoroughly considered the evidence on record and after discussing the same, came to the finding that defendant defaulted in payment of rent for the month of June 1995 and July 1995 and decided the point No. 1 in favour of the plaintiff. The said appellate Court also decided the point No. 2 in favour of the plaintiff and held that the plaintiffs need is not unreasonable. Learned lower appellate Court, thus, allowed the appeal and decreed the plaintiffs suit. 6. Mr. M.K. Dey, learned Counsel appearing on behalf of the appellant, tried to assail the judgment and decree of the lower appellate Court on the following grounds; (i) lower appellate Court has not properly appreciated the pleading and evidence of the parties and erred in holding that defendant was defaulter, (ii) no notice of attornment was served on the defendant and in absence thereof, defendant had no occasion to pay rent to the plaintiff and on that ground also, defendant cannot be held to be defaulter, (iii) the ground on which personal necessity of the plaintiff-respondent has been allowed, was non-existent on the date of filing of the suit. Learned Counsel relied on a decision in the case of Sk Sattar Mohd. Choudhari v. Gundappa Amamdas Bukate reported in 1997 (1) BLJR 493 and submitted that rent of pre-transfer period cannot be claimed by the purchaser and for non- payment of rent of that period, the defendant cannot be held to be the defaulter. There was no express right conferred to the plaintiff to realize arrears of rent from the defendant and the lower appellate Court has committed serious errors in allowing the plaintiffs appeal and decreeing the suit. 7. Mr. There was no express right conferred to the plaintiff to realize arrears of rent from the defendant and the lower appellate Court has committed serious errors in allowing the plaintiffs appeal and decreeing the suit. 7. Mr. S. Prasad, learned Counsel appearing on behalf of the respondent, on the other hand submitted that the plaintiff and defendant are close neighbours and the fact of transfer of the suit premises was conveyed and well known to the defendant in the month" of June 1995 itself which is evident from the evidences on record and in such situation, no separate notice of transfer was required to be served on the defendant as the notice is only for the purpose of knowledge. The appellate Court below has rightly appreciated evidence and held that the defendant has defaulted in payment of rent for the months of June and July 1995 to the plaintiff. Learned Counsel submitted that lower appellate Court has properly discussed and considered the evidence and the circumstances appearing on record and came to the finding that plaintiffs children have become marriageable and need of the plaintiff cannot be said to be unreasonable and has rightly decided the issue No. 2 in favour of the plaintiff. Learned Counsel further submitted that so far as question of partial eviction is concerned, learned trial Court specifically held that partial eviction cannot satisfy the need of the plaintiff. The said finding was not challenged by the defendant and the same become final and binding on the parties. Learned Counsel thus contended that the first appellate Court, is the last Court of fact, and has arrived at the finding of facts after discussing the evidences and material on record. This Court cannot re-appraise the evidence and arrive at different finding by upsetting the findings of the lower appellate Court. He further submitted that an error of fact cannot be a ground for interference in the judgment and decree of the first appellate Court. 8. Having heard learned Counsel for the parties and considered their submission, I find that the lower appellate Court has discussed the evidence and materials on record and has come to the independent finding of facts that the defendant has defaulted in payment of rent and that the plaintiff has got personal need for the suit premises. 8. Having heard learned Counsel for the parties and considered their submission, I find that the lower appellate Court has discussed the evidence and materials on record and has come to the independent finding of facts that the defendant has defaulted in payment of rent and that the plaintiff has got personal need for the suit premises. Learned lower appellate Court has arrived at the said findings of fact on appraisal of evidence and materials on record. This Court cannot reappraise the evidence and substitute its own findings of fact in exercise of its second appellate jurisdiction. Learned Counsel for the appellant failed to formulate any substantial question of law for acceptance of this appeal. The decision of the Apex Court in Sk Sattar Mohd. Choudhari case (supra) has got no relevance in the facts and circumstances of the instant case, as lower appellate Court has clearly held on the basis of the evidence of PW 1 that vendor of the plaintiff had informed the defendant about the sale of the suit premises to the plaintiff in June 1995. There is no scope, in second appeal, to enter into such factual question and disturb the finding of the lower appellate Court. I, therefore, find no merit in this appeal, which is accordingly dismissed.