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2009 DIGILAW 2121 (RAJ)

Umrao Singh v. Suresh Kumar

2009-10-09

S.P.PATHAK

body2009
JUDGMENT : 1. - This civil second appeal under section 100 of the Code of Civil Procedure has been filed against the judgment and decree dated 6th July, 2009 passed by the Additional District and Sessions Judge (Fast Track) No. 2. Beawar, District Ajmer in Civil First Appeal No. 9/2008 (23/2002) whereby the judgment and decree dated 24th April, 2002 passed by the Civil Judge (Junior Division), Beawar in Civil Suit No. 217/1985 decreeing the suit of the plaintiff-respondent for eviction has been upheld. 2. Briefly stated, the facts for the disposal of the present second appeal are that the respondent-plaintiff filed a civil suit for eviction from a shop against the defendant-appellant before the Civil Court alleging therein that his property No. 5/7 is situated opposite Pandit Market Diggi Mohalla, Beawar, out of which a shop and a pavement on the road has been let out to the appellant. It was further averred that the shop was let out 15 years back on oral agreement and since the appellant has not paid rent after 6th date of the month of Baisakhsudi of Samvat year 2042 and thereby he committed default. It was also averred that the respondents were in the need of the suit shop for their personal and bona fide need for the business of Suresh Kumar who was living at Ajmer and coming to Beawar to manage his business. It was prayed that the suit be decreed. 3. In the written statement filed by the defendant-appellant it was inter-alia, stated that there was no default made by the defendant. It was also averred that the respondent were not in need of the premises in question. A prayer was made to dismiss the suit. 4. On the basis of pleadings of the parties, the learned Trial Court framed as many as three issues including relief. 5. On behalf of the plaintiff-respondent Rameshwar Lal was examined and some documents were tendered In evidence. 6. On behalf of the defendant-appellant, two witnesses namely Umrao and Poonam Chand were examined as DW-1 and DW-2 respectively and some documents were tendered in evidence. 7. The learned Trial Court decided issue No. 2 which was in relation to the personal and bona fide necessity in favour of the plaintiff. The learned Trial Court decided the suit vide its judgment and decree dated 24.4.2002. 7. The learned Trial Court decided issue No. 2 which was in relation to the personal and bona fide necessity in favour of the plaintiff. The learned Trial Court decided the suit vide its judgment and decree dated 24.4.2002. The appeal preferred against the said judgment was dismissed vide its judgment and decree dated 6.7.2009. Hence, the present second appeal has been filed. 8. It has been contended by the learned Counsel for the appellant that both the Courts below have committed serious error of law as well as of fact in coming to the conclusion that the respondents have personal and bona fide necessity of the disputed premises. It is also contended that the Court below ignored the evidence which was available on record while deciding issue No. 2 in favour of the plaintiff. It is contended that since evidence has been misread, therefore, in the present matter substantial questions of law are involved and the appeal requires admission. 9. On the other hand, learned Counsel for the respondent submitted that the Trial Court has properly appreciated the evidence and correctly recorded the finding on issue No. 2. It is also contended that no substantial question of law is involved in the present matter for determination by this Court. In support of his submissions, learned Counsel has placed reliance on the decisions in the case of Hanso Devi v. Mool Chand, 2006 WLC (UC) 486 , Tikarn Chand v. Harbans Lal, 2006 (3) CDR 2402 , M/s. Jamna Trading Co. v. Rent Tribunal, 2009 WLC (UC) 443 , Champa Lal v. Amar Chand and another, 2009 (2) CDR 992 , Govind Prasad v. Bangali, 1996 (3) WLC 607 , Narhari Soma Bai v. Vitthal Das, Avinash Chandra v. 7th ADJ, 2008 (2) ALJ 561 , B.C. Bhutada v. G.R. Mundada, AIR 2003 SC 2713 , Mohabbe Ali v. Tej Bahadur and others, 2009 (76) ALR 531 , Maheshwari Samaj v. Mohan Singh, 1984 RLR 35 , R.C. Tamrakar v. Nidi Lekhal, 2001 (8) SCC 431 , Akhileshwar and others v. Mustquim, 2003 (1) SCC 462 and S. Thangapan v. P. Padmawati, 1999. 10. I have considered the submissions made before me and carefully perused the judgment of the Courts below and the material available on record. I have also carefully examined the authorities cited by the learned Counsel for the respondents. 10. I have considered the submissions made before me and carefully perused the judgment of the Courts below and the material available on record. I have also carefully examined the authorities cited by the learned Counsel for the respondents. The law laid down by various High Courts and the Apex Court is that normally the concurrent findings of facts arrived at by two Courts should not be disturbed unless it is found that the Courts below have misread the evidence or taken into consideration the material on record for the decision of the case. 11. A perusal of the impugned judgment delivered by the learned Trial Court reveals that in all two issues were framed. Issue No. 1 in relation to default was decided in favour of the appellant. Issue No. 2 was as to whether the plaintiff has a reasonable and bona fide necessity of the disputed premises for the reasons mentioned in para 8 of the plaint. The learned Trial Court after discussing the evidence of the parties found that the disputed premises was required to run the business of the plaintiff. In this connection, the learned Trial Court has discussed the evidence of the plaintiff Rameshwar Lal. The learned Trial Court has also considered the matter in relation to comparative hardship and recorded its finding in para 12 to the effect that the respondent-plaintiff has no other place except one for which the suit was filed, therefore, considering the evidence of both sides and also considering the place to be more suit able for the business of the plaintiff decided issue No. 2 in favour of the plaintiff. The contention of the learned Counsel, that the Trial Court committed illegality in deciding issue No. 2 is not tenable. The finding on issue No. 2 has been confirmed by the learned Appellate Court. The position of law is almost settled that concurrent findings of fact should not be disturbed in second appeal, may be erroneous one and I do not find that the Trial Court has failed to appreciate evidence properly and the Appellate Court while confirming the findings recorded by the Trial Court committed illegality, therefore, there does not appear any substantial question of law involved in this case for determination by this Court. The second appeal is devoid of merit and is liable to be dismissed. 12. In the result, this second appeal is dismissed.Appeal dismissed. The second appeal is devoid of merit and is liable to be dismissed. 12. In the result, this second appeal is dismissed.Appeal dismissed. *******