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2011 DIGILAW 759 (JHR)

Jaswant Singh v. Dinesh Prasad

2011-08-03

N.N.TIWARI

body2011
JUDGMENT: This second appeal is against the judgment and decree dated 4th January,2008 (decree signed on 11.1.2008) passed by learned 5th Additional District Judge, Jamshedpur, East Singhbhum in Eviction Appeal no.23 of 2006, whereby learned lower appellate court has upheld the judgment and decree passed by learned Munsif, Jamshedpur in Eviction Suit no.33 of 2001. 2. The appellant was the defendant in Eviction Suit no.33 of 2001. The said suit was filed by the plaintiffs-respondents praying for a decree for eviction of the defendant-appellant. 3. The plaintiffs’ case was that they are the owner and landlord of the suit premises measuring an area of 1436 Sqf. at mouza-Golmuri, fully described in Schedule 'A' of the plaint. The defendant was inducted as a tenant in the shop premises on monthly rent-payable @ Rs.2200/-according to the English Calendar month. The defendant had advanced a sum of Rs.20,000/-to the plaintiffs as loan on 20th January,2000. Out of which Rs.6,300/-was paid by plaintiff no.1 to the defendant on 27.7.2000 by cheque. The balance amount of Rs.13,700/-was to be adjusted against monthly rent payable by the defendant. The defendant had earlier given Rs.65,000/-as advance to the plaintiffs on 7.6.1997 for renovation of the suit shop. Out of the said amount, the plaintiffs had paid Rs.40,000/-by two cheques of Canara Bank dated 13.6.1998. The balance amount was adjusted against the arrears of rent payable by the defendant to the plaintiffs. The monthly rate of rent and other terms and conditions were mentioned in the agreement of tenancy dated 4.4.1998. The defendant paid rent upto August,1998. He did not pay rent for the suit premises since thereafter. The balance amount of advance was adjusted towards the monthly rent. After adjustment of all the sums, the defendant is liable to pay arrears of rent for the suit premises amounting to Rs.33,900/-from September,1998 to June,2001.But the defendant failed to make payment of the arrears or current monthly rent after adjustment of the amount and make himself defaulter. The plaintiffs requested the defendant to pay the arrears of rent, but the defendant did not pay the rent and rendered himself defaulter for non-payment of rent from September,1998 till the date of filing suit. The defendant is, thus, liable to be evicted from the suit premises on that ground. 4. The defendant appeared and contested the suit. He challenged the maintainability of the suit on several grounds. The defendant is, thus, liable to be evicted from the suit premises on that ground. 4. The defendant appeared and contested the suit. He challenged the maintainability of the suit on several grounds. The defendant also challenged the right and title of the plaintiffs over the suit land. It was stated that the suit premises is standing over Khata no.65, which is recorded in the name of State of Bihar. The TISCO has been shown as a lessee. The State of Bihar and TISCO are necessary party in the suit. The plaintiffs were the landlord and the defendant was the tenant in respect of the said premises, but the defendant had vacated the suit premises in the month of October,1998 and since thereafter he had been running a shop in the name of Auto Mobile Shop known as 'Saini Auto' over Plot no.2911 corresponding to new Plot no.4129 recorded under Khata no.61, Ward no.12, which is adjacent to the alleged suit premises. It was further stated that in the year 1998, the said suit premises became dilapidated and required repairing. The defendant had requested the plaintiffs to let out the suit premises to him temporarily so that he may run his shop therein till completion of repairing of his own shop. The plaintiffs had agreed and allowed the defendant to run his shop in the suit premises. After completion of repairing work, he had shifted his shop in his own premises. He had vacated the premises of the plaintiffs in the month of October,1998. At the time of execution of the agreement with the plaintiffs, he had paid Rs.30,000/-as advance towards the rent to the plaintiffs. As a matter of fact, the plaintiffs had taken loan of Rs.65000/-and mortgaged the suit property measuring an area of 1075 Sqf. for a period of six months, but the plaintiffs failed to return Rs.65,000/-to the defendant. The plaintiffs' averment that they had paid the balance amount through cheque is totally false. There is no arrears as alleged. The plaintiff's claim is false and baseless and the suit is, thus, not maintainable and is liable to be dismissed. 5. On the said pleadings of the parties, learned trial court framed several issues of fact as well as of law. 6. Both the parties adduced their evidences. Learned trial court thoroughly, considered the facts and evidences on record and arrived at its findings issuewise. 5. On the said pleadings of the parties, learned trial court framed several issues of fact as well as of law. 6. Both the parties adduced their evidences. Learned trial court thoroughly, considered the facts and evidences on record and arrived at its findings issuewise. It has been held, inter alia, that the defendant was tenant in the suit shop, he remained in occupation of the same, but defaulted in payment of rent since September,1998. The defendant's plea that he had vacated the suit shop in October,1998 has not been substantiated by evidence. Learned trial court decided almost all the issues in favour of plaintiffs and decreed the suit, directing the defendant to vacate and handover the vacant possession of the suit shop to the plaintiffs and further directed to pay the arrears of rent of Rs. 33,000/-to the plaintiffs. 7. Against the said judgment and decree, the defendant filed appeal in the court of the District Judge, Jamshedpur, East Singhbhum being Eviction Appeal no.23 of 2006. The said appeal was finally heard and decided by 5th Additional District Judge, Jamshedpur by the impugned judgment and decree. 8. Learned lower appellate court also thoroughly discussed the facts and materials on record and after considering all the relevant aspects, recorded its detailed finding. Learned lower appellate court arrived at his own independent finding upholding and agreeing with the findings recorded by learned trial court. Learned lower appellate court held that there was no infirmity in the judgment and decree of learned trial court and dismissed the appeal. 9. In this Second Appeal, the impugned judgment and decree has been assailed mainly on the ground that learned courts below failed to appreciate the defendant's evidence and materials on record in right perspective and have recorded erroneous findings. The finding of defaulter in payment of rent against the defendant-appellant has been arrived at without taking into considering the agreement entered between the parties and without considering that the loan amount was yet to be adjusted against rent. The said finding of learned courts below is perverse and against the weight of evidence on record. 10. I have heard learned counsel for the appellant and perused the judgment of learned courts below. The said finding of learned courts below is perverse and against the weight of evidence on record. 10. I have heard learned counsel for the appellant and perused the judgment of learned courts below. I find that the appellant's claim of advance given to the plaintiffs for adjustment against rent has been thoroughly considered by learned courts below and the finding thereon has been recorded after discussing and appraising the evidences in detail. It has been concurrently found that the defendant's plea is false and baseless. The two courts have concurrently found that there is relationship of landlord and the tenant between the plaintiff and the defendant and that the defendant has defaulted in payment of rent. The other defence taken by defendant has also not been accepted by the courts below. 11. The findings are based on due appreciation of evidence and materials on record. There is no legal basis for assailing the judgment and decree of learned court below. 12. I find no ground made out giving rise to any substantial question of law. This Second Appeal is, accordingly, dismissed.