Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 2178 (ALL)

Usha Singh v. Gyan Perkash

2014-07-23

ANIL KUMAR

body2014
JUDGMENT Anil Kumar, J. – Heard learned counsel for the appellant and perused the record. 2. Facts in brief of the present case are that the plaintiff-appellant filed a suit for permanent injunction that on 1.8.1992 respondents have let out the House no.18-5/396 situated Mohalla Jawahar Ganj, Kasba, Tehsil-Hapud, District-Gaziabad which consists of two rooms and the rent @ Rs.200/- per month has been paid by her uptill 30.06.2005. Thereafter, as per the oral settlement between the parties, the defendants had agreed to sell the house in question to her. 3. On the basis of the averment as made in the plaint, a Regular Suit No.173 of 2005 has been registered before the Civil Judge (J.D.), Hapud, dismissed by order dated 28.05.2013 with a cost of Rs.3000/-. 4. Aggrieved by the said order, the plaintiff-appellant filed an appeal registered Civil Appeal No.125 of 2013 (Smt. Usha Singh vs. Gyan Prakash and other), also dismissed by judgment and decree dated 2.7.2014. 5. Aggrieved by the said order, the present second appeal has been filed by the plaintiff-appellant under Section 100 , C.P.C. 6. Learned counsel for the appellant has pressed the appeal mainly on the substantial question of law : - "Whether a person can be permitted to dispossess any one without adopting due procedure of law ? Whether the judgment passed by the lower appellate court, contrary to order XLI, Rule 31 C.P.C. Is a judgment in the eye of law ? Whether a judgment based upon incorrect facts is a judgment in the eye of law ?" 7. Learned counsel for the appellant while pressing the above said question of law submits that the court below has wrongly passed the judgment and decree thereby dismissing the suit. 8. He further submits that there is no evidence on record that the husband of the plaintiff is a tenant of the house in dispute whereas the correct and true fact that the plaintiff-appellant is a tenant in the house in question. So, the suit filed by her to dispossess from the house in question, is maintainable and liabel to be allowed and judgment and decree passed by the court below is liable to be set aside. 9. So, the suit filed by her to dispossess from the house in question, is maintainable and liabel to be allowed and judgment and decree passed by the court below is liable to be set aside. 9. After hearing learned counsel for appellant, I feel appropriate to decide the substantial question of law, namely, 2 first which has been pressed by learned counsel for the appellant in the present case and in this regard, he submits that appellate court has not followed the provisions as provided under Order 41 Rule 31 C.P.C. While passing the judgment and decree in Civil Appeal No.125 of 2013 (Smt. Usha Singh vs. Gyan Prakash and other). In this regard, he has placed reliance on the judgment passed by this Court Writ Petition No.613 of 2014 (Lakhmi and 32 others vs. Judgendra Lal & Another). So, the same is liable to be set aside. 10. The submission made by learned counsel for the appellant is totally incorrect or wrong as from the perusal of the judgment and decree dated 2.7.2014 passed by the appellate court, the position which emerges out is that while adjudicating the Civil Appeal No.125 of 2013 (Smt. Usha Singh vs. Gyan Prakash and other), the appellate court has framed to point of determination no.7 which is as follows : - ^^bl vihy ds fofu'p; ds fy, ,dek= fofu'pk;d fcanq ;g mRiUu gksrk gS fd] D;k izfroknhx.k }kjk oknuh dks iz'uxr laifRr ls cyiwoZd csn[ky djus dk dksbZ iz;kl fd;k x;k vkSj ;fn gkWa rks D;k bl vk/kkj ij oknuh muds fo:) fcuk dkuwuh izfdz;k viuk;s csn[kyh u djus dh fMdzh izkIr djus ds fy;s vf/kd`r gS\^^ 11. Thus, in view of the above said facts, the position which emerges out is that the appellate court while adjudicating the Civil Appeal No.125 of 2013 (Smt. Usha Singh vs. Gyan Prakash and other) had followed the mandate as given under Order 41 Rule 31 CPC. Accordingly, the submission made by learned counsel for the appellant is incorrect and the appellant cannot derive any benefit from the judgment given by this Court in the Writ Petition No.613 of 2014 (Lakhmi and 32 others vs. Judgendra Lal & Another) and the same is not applicable to the facts and circumstances of the case. 12. Accordingly, the submission made by learned counsel for the appellant is incorrect and the appellant cannot derive any benefit from the judgment given by this Court in the Writ Petition No.613 of 2014 (Lakhmi and 32 others vs. Judgendra Lal & Another) and the same is not applicable to the facts and circumstances of the case. 12. So far as the other substantial questions of law are concerned, from the perusal of the impugned judgment passed by the court below, the position which emerges out is that the house in question which belongs to trust knows as Dharamshala Smt. Shanti Devi Trust has been let out to the husband of the plaintiff-appellant who is an employee in Krishi Utpad Mandi Samiti and the rent has been paid by her from 2005 by plaintiff-appellant/Smt. Usha Singh. 13. Accordingly, the court below has come to the conclusion that the plaintiff is not the tenant of the house in question while coming to the said findings has placed reliance on the law as laid down in the case of Dr. Neeraj Bhasin vs. Ashok Bhasin 2006 (2) A RC 385. The said finding is perfectly valid as per document on record. 14. Moreover, the trial court while passing the judgment dated 2.7.2014 has given a categorical finding that the P.W.1 during his cross-examination has admitted the fact that ^^eq>s tkudkjh gS fd lUrjknsoh VªLV us esjs ifr ds f[kykQ csn[kyh dk nkok xkft;kckn esa fd;k gSA** 15. And P.W.-2 who is husband of the plaintiff-appellant in his evidence has said that ^^;g dguk lgh gS fd /keZ'kkyk Jherh larjk nsoh VªLV togkj xat gkiqM+ us esjs fo:) xkft;kckn esa csn[kyh dk eqdnek nk;j dj j[kk gSA^^ 16. And on the basis of the same, the court below has come to the conclusion that the trust/defendant has taken the procedure as provided under law for evicting a person who is occupant the premises in question. Further, the finding given by the trial court has been affirmed by the appellate court. So, Thus, keeping in view the said finding of facts as well as taking into consideration that the Apex Court depreciated the liberal construction and generous application of provisions of Section 100 , C.P.C. Hon'ble Supreme Court was of the view that only because there is another view possible on appreciation of evidence that cannot be sufficient for interference under Section 100 C.P.C. 17. In Satya Gupta (Smt.) alias Madhu Gupta Vs. Brijesh Kumar , 1998 (6) SCC 423 by the Supreme Court as under : - "At the outset , we would like to point out that the findings on facts by the lower appellate court as a final Court of facts, are based on appreciation of evidence and the same cannot be treated as a perverse or based on no evidence. That being the position , we are of the view that the High Court, after re-appreciating the evidence and without finding that the conclusions reached by the Lower Appellate Court were not based on the evidence, reversed the conclusions on fact on the ground that the view taken by it was also a possible view on the facts. The High Court, it is well settled, while exercising jurisdiction under Section 100 CPC, cannot reverse the findings of Lower Appellate Court on facts merely on the ground that on the fact found by the Lower Appellate Court another view was possible." 18. Similar view was given by the Supreme Court in Kondiba Dagadu Kadam V. Savitribai Sopan Gujar and others, 1999 (36) ALR 218 (SC) and Hamida and other V. Md. Khalil, 2001 (45) AlR 23 (SC). , wherein it is held : - "It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first Appellate Court. It is true that the lower Appellate Court should not ordinarily reject witnesses accepted by the Trial Court in respect of credibility but even where it has rejected the witnesses accepted by the Trial Court, the same is no ground for interference in Second Appeal when it is found that the Appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the Lower Appellate Court is binding on the High Court in Second Appeal. Adopting any other approach is not permissible . In a case where from a given set of circumstances two inferences are possible, one drawn by the Lower Appellate Court is binding on the High Court in Second Appeal. Adopting any other approach is not permissible . The High Court cannot substitute its opinion for the opinion of the first Appellate Court unless it is found that the conclusions drawn by the Lower Appellate Court where erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court , or was based upon inadmissible evidence or arrived at without evidence." 19. It is well settled by a long series of decisions o the judicial committee of the Privy Council and of this Court that a High Court on second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the Courts of fact may be. It is not necessary to cite those decisions. Indeed, the learned counsel for the plaintiff-appellant did not and could not contend that the High Court was competent to go behind the findings of fact concurrently recorded by the two courts of fact. 20. In view of the above said facts and circumstances and after a careful consideration of arguments of the respective Counsel, I do not find any error of law in two concurrent conclusions recorded by the Courts below. No substantial question of law arises in the instant appeal. The judgment under challenged cannot be interfered in this appeal in exercise of jurisdiction under Section 100 C.P.C. 21. For the foregoing reasons, the present appeal lacks merits and is dismissed. No order as to costs.