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2012 DIGILAW 2033 (RAJ)

Sohan Devi v. Damodar Lal

2012-09-27

GOPAL KRISHAN VYAS

body2012
Hon'ble VYAS, J.— Instant second appeal has been filed under Section 100, C.P.C. by the appellant, legal heirs of late Bhanwar Lal who was tenant in the property in question, to challenge the judgment and decree dated 22.4.2000 passed by the Addl. District Judge No. 1, Bhilwara in Civil Appeal No. 20/1999 whereby the said appellate Court confirmed the judgment and decree passed by the Munsif & Judl. Magistrate (First Class), Bhilwara dated 21.12.1989 passed in Civil Regular Suit No. 191/1974. 2. The co-ordinate Bench of this Court while admitting the instant second appeal framed the following substantial questions of law which read as under: "(1) Whether on the facts and in the circumstances of this case, the learned courts below have erred in granting a decree for eviction on the ground of material alteration while ignoring the relevant considerations and proceeding on irrelevant considerations? (2) Whether on the facts of this case, the learned courts below have erred in not drawing adverse inference for non-appearance of the plaintiff Damodarlal in the witness box?" 3. Brief facts of the case are that respondent-plaintiff (landlord) filed a suit for eviction against the appellant on the ground of material alternation in the suit premises and on the ground of bona fide necessity. The trial Court after framing five issues commenced trial and while deciding the suit gave finding that the plaintiff has failed to prove the ground of bona fide necessity but, while deciding issue No. 3 with regard to material alteration in the suit property, granted decree of eviction in favour of the respondent-plaintiff landlord. 4. The defendants preferred an appeal before the District Judge, Bhilwara but the same was transferred to the Court of Addl. District Judge No. 1, Bhilwara and the said first appellate Court dismissed the appeal and upheld the finding given by the trial Court for issue with regard to material alteration in the property in question. 5. 4. The defendants preferred an appeal before the District Judge, Bhilwara but the same was transferred to the Court of Addl. District Judge No. 1, Bhilwara and the said first appellate Court dismissed the appeal and upheld the finding given by the trial Court for issue with regard to material alteration in the property in question. 5. The respondent-plaintiff preferred suit for eviction against original defendant Bhanwar Lal stating therein that he has purchased the plot from one Rameshwar Lal on 20.8.1972 for his personal necessity; but, at thee time of purchasing the said plot, late Bhanwar Lal and Kailash Chand were tenants, therefore, seller Rameshwar Lal Bhadada gave notice to the tenants and informed that he has sold the property, therefore, now Damodar Lal is owner of the property and he has become landlord of the property. 6. In pursuance of the above notice received by the tenants, they started paying rent to plaintiff Damodar Lal. Thereafter, on 23.4.1974, plaintiff Damodar Lal preferred suit in the Court of Munsiff, Bhilwara to get eviction decree against the tenants on the ground of material alteration upon the premises in question, so also, on the ground of bona fide personal necessity. 7. After issuing notice to the tenants by the Court, the defendants-tenants filed their reply and refuted all the allegations. Thereafter, the trial Court framed seven issues including issue with regard to bona fide necessity of the premises for the landlord, so also, for material alteration upon the premises in question. The trial Court granted decree upon the issue with regard to material alteration while deciding the issue in favour of the plaintiff vide judgment dated 21.12.1989, against which, an appeal was preferred but the first appellate Court rejected the appeal filed by the defendant-appellants vide judgment dated 22.4.2000 passed in appeal No. 20/1999. 8. The co-ordinate Bench of this Court, while admitting the instant appeal, framed aforesaid substantial questions for adjudication. 9. Learned counsel for the appellants submitted that both the questions of law framed by this Court are important question because the judgment and decree passed by both the Courts below are totally contrary to law for the simple reason that in the plaint itself there is no averments or specific allegation with regard to raising any type of construction by the tenant. A very vague averment is made in the plaint to get eviction decree that defendant-appellants caused material alteration upon the property in question. But, to prove the said allegation made in the plaint, the plaintiff himself did not appear in the witness-box and, inspite of that, the trial Court erroneously gave finding while relying upon the statement of previous owner of the property Rameshwar Lal, PW.1 that plaintiff has proved the fact that material alteration has been made by the tenant but said finding is not correct. 10. Learned counsel for the appellants argued that statement of Rameshwar Lal, PW.1 has wrongly beer relied upon by the trial Court to ascertain correctness of the allegation with regard to material alteration upon land in question. Therefore, the finding given by the trial Court with regard to material alteration is totally perverse and erroneous. It is also argued that material document whereby the plaintiff got title over the property executed by Rameshwar Lal in his favour which is sale-deed is not produced by the plaintiff before the Court to prove what type of construction was in existence at the time of sale, therefore, the trial Court committed grave illegality in ignoring above fact as to what type of construction was in existence at the time of purchasing the property in question by the plaintiff-respondent and what type of material alteration has been caused, therefore, the judgment and decree passed by both the Courts below deserve to be quashed and set aside. 11. As per appellants submission, the trial Court has failed to appreciate the fact that to prove the averment of the statement of plaint, the plaintiff was necessary for the purpose of proving the ground of material alteration upon the property in question. The trial Court, however, while deciding the suit relied upon the statement of PW.1, Ramehwar Lal- the previous owner of the property and, PW.2 Bhanwar Lal only. No other oral evidence is produced before the Court to prove the issue with regard to material alteration, therefore, the finding given by the trial Court for the issue of material alteration upon the disputed premises deserves to be quashed and set aside. 12. The contention of appellants is that the trial Court ought to have drawn adverse inference against the plaintiff because he did not appear in the witness-box to prove his case. 12. The contention of appellants is that the trial Court ought to have drawn adverse inference against the plaintiff because he did not appear in the witness-box to prove his case. Further, the decree of eviction passed by the trial Court is totally contrary to the evidence on record and it has been passed while ignoring the relevant evidence and facts and based upon irrelevant considerations. For ground of material alteration, the burden was upon the plaintiff, therefore, he was to be examined before the trial Court but, admittedly, the plaintiff himself did not appear in the witness-box but trial Court relied upon statement of other witnesses, therefore, the finding given by the trial Court for the ground of material alteration and upheld by the first appellate Court deserves to be quashed. 13. In support of his contention, learned counsel for the appellants invited attention of this Court towards following judgments: "(1) AIR 1999 SC 1441 (2) 2003) (1) SCC 59 (3) AIR 2005 SC 439 . 14. While citing the above judgments, learned counsel for the appellants submits that the eviction decree passed by the trial Court and affirmed by the first appellate Court deserves to be quashed because both the Courts below have decided the issue of material alteration contrary to the basic principles of law, so also, without recording statement of plaintiff Damodar Lal to prove the averment of plaint and the issue of material alteration. 15. Per contra, Mr. Vinay Kothari, appearing on behalf of the respondents, vehemently argued that there is no illegality and perversity in the finding given by the trial Court for issue with regard to material alteration in the property in question. PW.1 Rameshwar Lal was holding the power of attorney of plaintiff-respondent, so also, he was previous owner of the property from whom the plaintiff-respondent Damodar Lal purchased the property in question in the year 1972 and the appellants took the premises in question on rent from him, therefore, he is the best witness to prove the fact with regard to existing construction and material alteration made by the appellant tenants. The trial Court relied upon the oral statement of PW.1 Rameshwar Lal and gave finding that material alteration has been made by the appellants and for the said reason the plaintiff-respondent is entitled for decree of eviction. 16. The trial Court relied upon the oral statement of PW.1 Rameshwar Lal and gave finding that material alteration has been made by the appellants and for the said reason the plaintiff-respondent is entitled for decree of eviction. 16. The contention of the counsel for the appellant that it was open for the plaintiff to lead other evidence to prove the case and it is not necessary that statement of plaintiff should be recorded to prove the averments made in the plaint or the issue framed by the trial Court for eviction. The other factors, evidence and circumstances can be taken into account for the purpose of adjudicating the controversy of material alteration in the suit for decree of eviction, therefore, it cannot be said that any error of law has been committed by the trial Court or the first appellate Court to rely upon the statement of PW.1 Rameshwar Lal to prove the fact that material alteration in the property has been made because PW.1 Rameshwar Lal is the previous owner of the property in question from whom plaintiff Damodar Lal purchased the property, in which, the appellants were in possession as tenants. 17. Learned counsel for the respondent while inviting attention of the Court towards statement of DW.2 Bhanwar Lal submits that he is admitting in his statement that some construction was raised by him and put iron sheets to utilize the premises for his business, therefore, upon the said admission also, it cannot be said that any error has been committed by the trial Court while relying upon statement of PW.1 Rameshwar Lal and deciding the issue without recording statement of Plaintiff Damodar Lal. Therefore, it is prayed that the concurrent finding of fact arrived at by both the Courts below does not require any interference. More so, it is a case in which the trial Court while relying upon cogent and reliable evidence decreed the suit on the ground of material alteration made by defendant tenants without permission of the owner of the property. 18. More so, it is a case in which the trial Court while relying upon cogent and reliable evidence decreed the suit on the ground of material alteration made by defendant tenants without permission of the owner of the property. 18. As per counsel for the respondent that if there is no perversity or illegality in the finding which is based upon admission of the tenants for raising construction, then, there is no question of raising any voice before this Court that the Courts below wrongly passed the decree relying upon the statement of the previous owner and as such it is prayed that this second appeal may be dismissed. Learned counsel for the respondent in support of his argument with regard to test of material alteration cited the following judgments: (1) AIR 1996 SC 3057 (2) (1993) 2 SCC For non-appearance of the plaintiff in the witness-box and for the reason that thee previous owner appeared in the witness-box and supported the averments made in the plaint, for the said proposition the respondent placed reliance upon the following judgment: (1) AIR 1996 SC 3057 19. While citing the aforesaid judgments, it is submitted that the subsequent buyer Damodar Lal gets all rights as they vested in the previous owner PW.1 Rameshwar Lal, therefore, there is no error in the judgments rendered by the Courts below and, accordingly, this second appeal may be dismissed as having no substance. 20. After hearing learned counsel for the parties, I have scanned the entire evidence on record of the case, more specifically the evidence to decide the aforesaid questions framed in this second appeal for adjudication. 21. Admittedly, the suit was filed by Damodar Lal plaintiff-respondent against Bhanwar Lal and Kailash Chandra. In the suit, it was specifically pleaded that property in question was purchased by him from PW.1 Rameshwar Lal and, for the purpose of eviction on the ground of material alteration, following assertion was made in para 4 of the plaint: ^^4- ;g fd izfroknhx.k us fdjk;snkjh dh 'krksZ ds f[kykQ fdjk;slqnk IykaV esa iDdk LFkkbZ fuekZ.k djk fy;k gS ftlls oknh ds fdjk;slqnk IykaV dh 'kdy rCnhy gks xbZ gSaA** 22. There is no specific prayer in the plaint for eviction on the ground that defendant has raised construction upon the premises in question, therefore, the plaintiff is entitled for decree of eviction. There is no specific prayer in the plaint for eviction on the ground that defendant has raised construction upon the premises in question, therefore, the plaintiff is entitled for decree of eviction. It is also worthwhile to observe that there is no specific date or specific fact is mentioned with regard to type of construction raised by him and when; so also, the plaintiff himself did not appear in the witness-box to prove the fact of alteration even though burden of proof lay upon him. 23. In the trial only two witnesses were examined from the side of the plaintiff viz., PW.1 Rameshwar Lal- previous owner of the proper and PW.2 Bhanwar Lal; and, in support of defence, statements of DW.1 Bhanwar Lal, D.W. 2 Dhanna Lal, D.W. 3 Arjun Dev and D.W. 4 Madan lal were recorded. All the defence witnesses categorically stated that the appellant-defendants were tenants of original owner of the property in question PW.1 Rameshwar Lal and, subsequently, the said property was purchased by plaintiff Damodar Lal. All the witnesses of defence categorically deposed in their statements that at the time of taking the premises in question on rent by Bhanwar Lal and Kailash Chand and construction was in existence. 24. D.W. 1 Bhanwar Lal in his statement said that no new construction was raised by him and only some sheets were put upon the walls which was already in existence but the trial Court discarded their evidence on the ground that they are also tenants of other property of the plaintiff, therefore, they are interested parties. 24. D.W. 1 Bhanwar Lal in his statement said that no new construction was raised by him and only some sheets were put upon the walls which was already in existence but the trial Court discarded their evidence on the ground that they are also tenants of other property of the plaintiff, therefore, they are interested parties. In my opinion, they were the best witnesses to prove the fact of raising construction; more so, there was an opportunity left with the plaintiff Damodar Lal to produce the sale-deed executed by the earlier owner of the Property PW.1 Rameshwar Lal in his favour to prove the fact that only plot was purchased by him and no construction was in existence but it appears from the record of the case that purposefully Damodar Lal plaintiff did not appear in the witness-box to prove the contents of the pleadings with regard to raising construction, so also, he did not produce the copy of the registered sale-deed before the Court to prove the fact that only plot was purchased by him and, at the time of purchasing the plot, there was no construction upon the site and the defendants altered the existing position of the plot for their use. 25. As per opinion of this Court, the judgments cited by the appellants reported in AIR 2005 SC 439 , Janki Vasudev Bhojwani vs. Indusind Bank & Others is clear answer to the substantial question framed in this second appeal. Hon'ble Supreme Court in para 12, 13, 14 and 22 of the said judgment held that as per Order 3 Rules 1 & 2, CPC empowers the holder of power of attorney to act on behalf of the principal. The word `acts' employed in Order 3, Rules 1 and 2, confines only in respect of `acts' done by the power of attorney holder in exercise of power granted by the instrument; meaning thereby, even if PW.1 Rameshwar Lal was holding power of attorney he cannot be treated to be witness to discharge the onus of proof of the issue which lay on the principal i.e., plaintiff Damodar Lal. 26. Para 12, 13, 14 and 22 of the aforesaid judgment rendered by the Hon'ble Supreme Court in Janki Vashdeo Bhojwani & Another vs. Indusind Bank Ltd.., reported in AIR 2005 SC 439 , read as follows: "12. 26. Para 12, 13, 14 and 22 of the aforesaid judgment rendered by the Hon'ble Supreme Court in Janki Vashdeo Bhojwani & Another vs. Indusind Bank Ltd.., reported in AIR 2005 SC 439 , read as follows: "12. In the context of the directions given by this Court, shifting the burden of proving on the appellants that they have a share in the property, it was obligatory on the appellants to have entered the box and discharged the burden by themselves. The question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of attorney from them. The power of attorney holder does not have the personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal. 13. Order III, Rules 1 and 2, CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2, CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include depositing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power to attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. 14. Having regard to the directions in the order of remanded by which this Court placed the burden of proving on the appellants that they have a share in the property, it was obligatory on the part of the appellants to have entered the box and discharged the burden. Instead, they allowed Mr. Bhojwani to represent them and the Tribunal erred in allowing the power of attorney holder to enter the box and depose instead of the appellants. Instead, they allowed Mr. Bhojwani to represent them and the Tribunal erred in allowing the power of attorney holder to enter the box and depose instead of the appellants. Thus, the appellants have failed to establish that they have any independent source of income and they had contributed for the purchase of the property from their own independent income. We accordingly hold that the Tribunal has erred in holding that they have a share and are co-owners of the property in question. The finding recorded by the Tribunal in this respect is set aside. .... .... .... .... ... ... 22. In the view that we have taken we hold that the appellants have failed to discharge the burden that they have contributed towards the purchase of property at 38, Koregaon Park, Pune from any indepen-dent source of income and failed to prove that they were co-owners of the property at 38, Koregaon Park, Pune. This being the core question, on this score alone, the appeal is liable to be dismissed." 27. Admittedly, PW.1 Rameshwar Lal was original owner and after selling the said property plaintiff Damodar Lal became owner of the property in question, therefore, to prove the ground or issue of major and material alteration of construction he was to prove by leading his oral statement before the Court. 28. Upon perusal of statement of PW.2 Bhanwar Lal, it is revealed that his statement is inclined towards exaggeration and improvement inasmuch as the plaintiff's witnesses have stated more than the pleadings in the plaint. Strangely, the trial Court and first appellate Court relied upon their statements and granted decree of eviction in favour of the plaintiff Damodar Lal which is not in consonance with the basic principles of law. 29. The facts of the judgment cited by learned counsel for the respondent, reported in AIR 1996 SC 3057 , are altogether different than the facts of the present case. Therefore, there is no question of saying that PW.1 Rameshwar Lal was the best witness to prove the issue with regard to major alteration upon the property in question and to discredit his argument para 12 and 13 of the judgment of Hon'ble Supreme Court in Janaki Vasudev Bhojwani's case (supra), quoted above, are sufficient. 30. Therefore, there is no question of saying that PW.1 Rameshwar Lal was the best witness to prove the issue with regard to major alteration upon the property in question and to discredit his argument para 12 and 13 of the judgment of Hon'ble Supreme Court in Janaki Vasudev Bhojwani's case (supra), quoted above, are sufficient. 30. It is also worthwhile to observe that plaintiff Damodar Lal is admittedly residing at Mhow (M.P.) and he did not appear before the Court to prove the fact of major alterations though he has pleaded vague averments in the plaint but the learned trial Court while relying upon the statement of PW.1 Rameshwar Lal treated the issue of major alterations to be proved. In the considered opinion of this Court, such finding in the absence of the statement of the plaintiff cannot be treated to be trustworthy or in consonance with law. The trial Court was under obligation to draw adverse inference for the non-appearance of the plaintiff in the witness box. On the contrary, it has relied upon the statement of PW.1 Rameshwar Lal who was the previous owner of the property from whom the plaintiff purchased the said property. 31. Therefore, the finding arrived at by the trial Court on the issue of material alteration is totally perverse and not based upon sound and trustworthy evidence. The trial Court has committed gross error while not drawing adverse inference for non-appearance of the plaintiff Damodar Lal because he was the only witness to prove the fact of material alteration by way of producing documentary evidence which the registered sale-deed executed by Rameshwar Lal in his favour, so also, his oral statement. 32. Therefore, the questions framed in this second appeal for adjudication are answered in affirmative. As a result, this second appeal is allowed. Both the judgments and decree impugned in this second appeal are hereby quashed and set aside. Suit of the plaintiff is ordered to be dismissed. Let decree be drawn accordingly. 33. In view of the above, various IAs also stand disposed of.