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2015 DIGILAW 2797 (ALL)

Pooran Chand v. Phoolwati

2015-09-07

ASHWANI KUMAR MISHRA

body2015
JUDGMENT Ashwani Kumar Mishra, J. Plaintiff-respondent has filed a suit for possession with the allegation in the plaint that the defendant-appellant was allowed to live in the house owned exclusively by her, by her Jeth, and that defendant was living in house as a licencee. It has been pleaded that defendant-appellant has now started harassing the plaintiff-respondent, who is an old lady and after certain other portions of house was vacated by sitting tenant, defendant-appellant has increased his area of possession by including the rooms, which got vacated by other sitting tenants. It has claimed that his licence has been revoked, and now the status of defendant-appellant is of unauthorized occupant. The suit was contested by the defendant-appellant, who stated that he is the son of plaintiff-respondent and that the property itself is joint family property, though it was purchased in the name of plaintiff-respondent, and that plaintiff is not the exclusive owner of the house. Trial court for the purposes of adjudication of the suit framed as many as 8 issues. Issue no.1 was framed on the question as to whether the plaintiff is the exclusive owner of the house and issue no.3 was framed on the question as to whether the defendant is the son of plaintiff-respondent with her husband late Radhey Shyam Sharma. Other issues were also framed. Parties led their oral and documentary evidence in respect of their claim. Trial court on the basis of evidence and materials brought on record returned a finding that the defendant-appellant is not the son of plaintiff-respondent and issue no.3 was answered accordingly. A further finding was returned that the plaintiff-respondent is exclusive owner of the house and after adjudicating other questions, plaintiff-respondent's suit was decreed by the trial court. 2. The judgment and decree of the trial court was carried in appeal, wherein the decree of trial court was modified and the decree of eviction against defendant-appellant from the entire house has been substituted with that of the area specified and claimed in the plaint itself. Except for the aforesaid modification the findings returned by the trial court on various issues have been maintained by the appellate court. Thus aggrieved, the defendant-appellant has filed the present appeal. 3. Except for the aforesaid modification the findings returned by the trial court on various issues have been maintained by the appellate court. Thus aggrieved, the defendant-appellant has filed the present appeal. 3. Shri Ramendra Asthana, learned counsel appearing for the defendant-appellant submits that documentary evidence was brought on record on behalf of the defendant-appellant to show that he was the son of plaintiff-respondent, which has been ignored. It has further been argued that the status of plaintiff-respondent has been shown as that of an unauthorized occupant/licencee and a tenant which is contradictory. Submission is that inherent contradiction in the plea of plaintiff-respondent has been ignored, and therefore, the appeal is liable to be entertained. 4. The aforesaid submission is countered by learned counsel appearing for the plaintiff-respondent, who submits that on issue no.3 there was a categorical admission by the defendant-appellant that plaintiff-respondent had never treated him as his son. Attention of the Court has been invited to the finding returned by the lower appellate court on the issue no.3, specifically recording that the document, which had been relied upon by the defendant-appellant, could have been prepared even without the consent and knowledge of the plaintiff-respondent, and as such, the documents relied would not be material to establish the factum of defendant being son of plaintiff-respondent. It has further been stated that plaint's averment clearly mentioned defendant-appellant's induction in the house originally as licencee and thereafter upon its revocation, his continuation in the house has been described as that of an unauthorized occupant and the plea taken is not inconsistent. 5. Having considered the aforesaid submissions advanced by learned counsel for the parties, this Court finds that the factum of defendant-appellant being son of Radhey Shyam Sharma has been specifically denied. Defendant-appellant on the other hand has admitted that he was never treated as son by the plaintiff-respondent. This Court finds it difficult to accept that a mother would deny and dispute her own son for no plausible reason. So far as documentary evidence relied upon by the defendant-appellant is concerned, it has been noted that such evidence could have been got prepared even without the consent and knowledge of plaintiff-respondent. This Court finds it difficult to accept that a mother would deny and dispute her own son for no plausible reason. So far as documentary evidence relied upon by the defendant-appellant is concerned, it has been noted that such evidence could have been got prepared even without the consent and knowledge of plaintiff-respondent. Based upon materials and evidence on record if both the courts below have found that the defendant-appellant is not the son of plaintiff-respondent, no exception can be taken to it in the present appeal, considering its limited scope under section 100 CPC. The finding of the courts below on issue no.3 requires no interference. 6. So far as the alleged contradiction in the plea of plaintiff-respondent is concerned, this Court finds that there is no inconsistency in the stand taken by the plaintiff-respondent, who has described defendant-appellant initially as licencee, and thereafter as an unauthorized occupant. Once the licence itself stood revoked, status of defendant-appellant would be of unauthorized occupant and not much could be attached to a stray oral remark of the plaintiff in one of the lines of her statement that defendant-appellant continued as a tenant. The case of tenancy has not been setup by defendant-appellant either. In such view of the matter, the lower appellate court has modified the trial court's judgment by limiting relief to the extent it has been prayed for in the plaint. 7. From the perusal of the judgment and decree of the lower appellate court and the materials brought on record, this Court finds that there is no perversity in the judgment of the lower appellate court, which may warrant any interference. No substantial question of law arises for consideration in the present appeal, which is concluded by findings of fact. 8. Accordingly, the second appeal fails and is dismissed in limine.