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2014 DIGILAW 1206 (RAJ)

Shanker Lal v. Abdul Salim

2014-05-23

ARUN BHANSALI

body2014
JUDGMENT 1. - This second appeal under Section 100 CPC is directed against judgment and decree dated 24.05.2004 passed by Additional District Judge, Nimbaheda, whereby, judgment and decree dated 21.03.2001 passed by Civil Judge (Junior Division), Nimbaheda has been upheld. 2. The facts in brief may be noticed thus: the plaintiffs-respondents filed a suit for eviction of the defendants-appellants from the suit premises alleging therein that late Abdul Karim was landlord and in the year 1956 he had let out the suit premises to Mohd. Tahir, who was father of defendant Nos. 1 and 2 and husband of respondent No. 3; the rent for a period of 34 years and 9 months was due against late Mohd. Tahir; Mohd. Tahir had sublet the suit premises to brother of defendant No. 4 and he further sublet the same to defendant No. 4; the defendants had made material alteration in the suit shop by raising construction; the eviction was sought on the grounds of default in payment of rent, subletting and material alteration in the suit premises. 3. The defendant Nos. 1 to 3 admitted the case of the plaintiffs, however, the defendant-appellant Nos. 4 and 5 filed written statement and resisted the suit, inter alia, with the averments that the suit premises was not a shop but the same were Kotadies and the premises was let out to late Shri Vishnuji, who was father of defendant No. 5 on a monthly rent of Rs. 8/; at the time of death of Shri Vishnuji, Chhitar Mal, who was elder brother of late Shri Vishnuji was in possession of the suit premises and was carrying on business there; the rent was paid by the defendants to late Shri Abdul Karim; after death of Chhitar Mal and Vishnuji, the defendant Nos. 4 and 5 became tenants of Shri Abdul Karim and the construction was raised with the consent of Shri Abdul Karim 10 years before filing of the suit. 4. The trial court framed as many as six issues; on behalf of the plaintiffs - five witnesses were examined including defendant No. 1 as PW-3 and several documents were exhibited; on behalf of defendant Nos. 4 and 5 five witnesses were examined and certain documents were exhibited. 5. After hearing the parties, the trial court came to the conclusion that vide the rent note (Exhibit-1) the suit property was let out to Mohd. 4 and 5 five witnesses were examined and certain documents were exhibited. 5. After hearing the parties, the trial court came to the conclusion that vide the rent note (Exhibit-1) the suit property was let out to Mohd. Tahir and the rent receipts (Exhibits-A/1 to A/5) relied on by the defendants-appellants cannot be relied on; the shop has been sublet by Mohd. Tahir, which fact is fortified from the documents (Exhibits-2 and 3); the defendants have materially altered the suit premises; it cannot be accepted that the suit property was let out to the appellants and they raised construction thereon; the legal representatives of Chhitar Mal were not necessary parties and, ultimately, decreed the suit filed by the plaintiffs. 6. Feeling aggrieved, the appellants filed first appeal. 7. After hearing the parties, the first appellate court upheld judgment and decree passed by the trial court on all counts. 8. It is submitted by learned counsel for the appellants that both the courts below fell in error in decreeing the suit filed by the plaintiffs; the findings of material alteration and subletting are ex facie against the record of the case and, as such, the same deserve to be set aside; reference was made to the examination in chief of PW-1 and it was claimed that the plaintiffs have admitted letting out of the suit site to the appellants with their consent and have tried to get away by claiming that permission was not taken; it was further submitted that the claim made by the respondents regarding non-payment of rent for a period of over 34 years clearly goes to show that the appellants were in possession of the suit property with the consent of late Shri Abdul Karim and the allegations to the contrary are baseless; it was further submitted that the trial court was not justified in itself comparing the signatures on Exhibits-A/1 to A/5 and Exhibits-14 and 16; the first appellate court has given undue importance to the statement of Shanker Lal, wherein, he has denied his signatures on the written statement and Vakalatnamas, and therefore, the appeal deserves to be admitted on the substantial questions of law suggested. 9. 9. Per contra, learned counsel for the respondents submitted that both the courts below have concurrently found against the appellants on the question of subletting and material alteration; the reliance placed on two lines in the examination in chief is baseless; the same has been properly explained; letting out of shops to Mohd. Tahir is amply proved and the subletting to the appellants is also proved on record; further the shops have been converted into residential accommodation by raising construction, which clearly is material alteration and, therefore, no interference is called for in the decree passed by the trial court. 10. I have considered the rival submissions made by learned counsel for the parties and have gone through judgments of both the courts below as well as record of the trial court. 11. The case of the plaintiffs was that Shri Abdul Karim, their father, had let out the suit property to Mohd. Tahir, who had sublet the same to the appellant No. 1 Shanker Lal and to one Chhitar Mal; Chhitar Mal in turn handed over the possession to appellant No. 2 Khem Chand and that the defendants have materially altered the suit premises by raising construction and converting the same from shops to residential accommodation; the plaintiffs relied on rent note (Exhibit-1) executed by Mohd. Tahir in favour of Shri Abdul Karim and two rent notes (Exhibits- 2 and 3) executed by Shanker Lal and Chhitar Mal in favour of Mohd. Tahir; further evidence was led about the issue relating to material alteration. 12. The case of the respondents was that the suit shops were taken on rent by them directly from Shri Abdul Karim and they paid rent to Shri Abdul Karim, who issued rent receipts and relied on Exhibits-A/1 to A/5; during the course of statement when DW-1 was confronted with his signatures on the written statement, he denied to recognise his signatures and again when he was confronted with Vakalatnamas (Exhibits-4 and 5) he denied to recognise his signatures; the reason for denial of signatures on Exhibits-4 and 5 and the written statement is not far to see, inasmuch as, the denial was made only with a view to ensure that there were no admitted signatures on record, as the appellant Shanker Lal also denied signatures on Exhibit-2, which is the rent note said to have been executed by him in favour of Mohd. Tahir; as such, the plea raised by the learned counsel for the appellants regarding inconsequential nature of denial of signatures by appellant No. 1 Shanker Lal cannot be accepted; the denial of signatures on Vakalatnamas and written statement can reasonably be used for drawing adverse inference against the appellant No. 1. The defendants relied on Exhibits-A/1 to A/5, the rent receipts, executed in Urdu and claimed the same to have been issued by late Shri Abdul Karim; however, when documents (Exhibit-14 and 16), which were certified copies of the Court proceedings containing signatures of Shri Abdul Karim were produced before the trial court by the plaintiffs, the trial court on comparing the signatures between Exhibits-A/1 to A/5 and Exhibits-14 and 16 while exercising powers under Section 73 of the Evidence Act, 1872 ('the Evidence Act'), came to the conclusion that the signatures on Exhibits-A/1 to A/5 cannot be said to be that of Shri Abdul Karim; the exercise of power under Section 73 of the Evidence Act, in the facts and circumstances of the case, cannot be said to be perverse, inasmuch as, a bare look at the two sets of signatures clearly reveals that it does not require any hand writing expert to come to a conclusion about the similarity/dissimilarity between the two sets of signatures as the same are very distinct. 13. So far as the argument of learned counsel for the appellants regarding part of statement of PW-1 is concerned, the same can be described as mere attempt to catch at straw, inasmuch as, in view of overwhelming documentary and oral evidence available on record, it cannot be said that the single line in statement, wherein, it is indicated that the 'letting out was with consent' and in the same breath also it is indicated that the same was 'without permission', can be sufficient to come to a contrary conclusion. 14. From the documents (Exhibits-1, 2 and 3) the letting of suit property by Shri Abdul Karim to Mohd. Tahir and its subletting by Mohd. Tahir to the appellants is very well proved on record and the findings recorded by both the courts below cannot be said to be perverse; similarly, both the courts below have concurrently found material alteration based on the oral evidence of the parties, which also cannot be said to be perverse. 15. Tahir and its subletting by Mohd. Tahir to the appellants is very well proved on record and the findings recorded by both the courts below cannot be said to be perverse; similarly, both the courts below have concurrently found material alteration based on the oral evidence of the parties, which also cannot be said to be perverse. 15. In view of the above discussion, the concurrent findings recorded by both the courts below do not give rise to any substantial question of law.Consequently, there is no substance in the appeal and the same is, therefore, dismissed. No costs.Appeal dismissed. *******