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2012 DIGILAW 691 (RAJ)

Ram Sukh v. Pushpa Kumari

2012-03-20

GOPAL KRISHAN VYAS

body2012
JUDGMENT 1. - Instant civil second appeal has been filed under Section 100, C.P.C. against judgment and decree dated 21.9.2011 passed by the District Judge, Merta in Civil Appeal Decree No. 3/2005 whereby the first appellate Court dismissed the appeal filed by the defendant-appellant and upheld the judgment and decree dated 11.12.2004 passed by the Civil Judge (Sr. Dn.), Merta in Civil Regular Suit No. 16/1995, by which, the trial Court decreed the suit against the appellant-defendant for eviction. 2. Brief facts of the case are that a suit for recovery of rent and possession of premises - nohra, in question was filed by the respondent-plaintiffs against the defendant-appellant. In the suit, it is specifically alleged that the appellant took on rent said nohra from husband and father of respondent-plaintiffs, Gyan Chand on 22.2.1985 on rent of Rs. 550/- per month. After death of Gyan Chand, the appellant-defendant was regularly making payment of rent till 31.5.1992. Thereafter, for 38 months, he did not pay rent nor rent was tendered, therefore, suit was filed on the ground of default, so also, on the ground that material alteration was made by way of raising construction by the appellant-defendant. 3. Learned trial Court after framing 5 issues recorded the evidence of both the parties and passed an order that the appellant-defendant shall pay Rs. 550/- per month rent with effect from 1.10.1995 and rent of 36 months prior to the said date may also be paid to the plaintiff. Further, it is ordered that vacant possession of said nohra may be given to the plaintiff within a period of two months. Aforesaid decree was passed on the ground of default as well as making material alteration by way of raising construction by the appellant-defendant. 4. An appeal was filed against the judgment dated 11.12.2004 passed by the Civil Judge (Sr. Dn.), Merta and, in appeal, the first appellate Court upheld the judgment rendered by the trial Court and dismissed the appeal filed by the defendant-appellant. In this second appeal, the defendant is challenging both the judgments passed by the Courts below. 5. 4. An appeal was filed against the judgment dated 11.12.2004 passed by the Civil Judge (Sr. Dn.), Merta and, in appeal, the first appellate Court upheld the judgment rendered by the trial Court and dismissed the appeal filed by the defendant-appellant. In this second appeal, the defendant is challenging both the judgments passed by the Courts below. 5. Learned counsel for the appellant is challenging the validity of the above judgments solely on the ground that the finding of material alteration by way of raising construction by the defendant is totally perverse and on the basis of evidence on record it cannot be said that any material alteration or construction was made by the appellant-defendant in the nohra in question which was taken by him on rent. Learned counsel for the appellant invited my attention towards judgment of the Hon'ble Supreme Court in the case of Om Prakash v. Amar Singh & Anr. reported in AIR 1987 SC 617 and submits that as per adjudication made in para 6 of the judgment the finding given by the trial Court with regard to material alteration deserves to be quashed. 6. I have perused the entire record of the case, so also, the finding given by the trial Court as well as appellate Court. 7. In my opinion, there is ample evidence to prove the fact that material alteration was made without the permission of the plaintiff-respondents which is evident from the report given by the commissioner to the trial Court. Learned trial Court while giving the finding for issue No. 4 held that there is ample evidence on record to prove the fact that material alteration was made by the appellant-defendant in the nohra in question. Therefore, the judgment cited by learned counsel for the appellant is not applicable upon the facts of the present case. The finding given by the trial Court is based upon sound appreciation of evidence and arrived at after due application of mind. In my opinion, no substantial question of law emerges in this second appeal for consideration. 8. Hence, this second appeal is hereby dismissed.Second appeal dismissed. *******