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2016 DIGILAW 1214 (RAJ)

Brij Raj v. Ibrahim

2016-08-23

ARUN BHANSALI

body2016
JUDGMENT Arun Bhansali, J. This second appeal under Section 100 CPC is directed against the judgment and decree dated 18/5/2016 passed by the Addl. District Judge, Merta, whereby, the judgment and decree dated 23/5/2009 passed by the Addl. Civil Judge (Jr.Div.) Merta has been upheld. 2. The respondent filed a suit for eviction and permanent injunction against the appellant inter alia with the averments that a plot of land situated near bus stand, Merta was let out to the appellant on 1/2/1983; the plot was taken on rent for establishment of 'Oil Ghana' ( rsy ?kk.kk ) i.e. for commercial purpose and the same was being used for the said purpose, however, the use has been changed to residential purpose. Further allegations were made alleging material alteration in the premises. 3. The suit was resisted by the appellant inter alia on the ground that the plot was taken on lease on 1/2/1983, through a registered document and as per the said lease deed the same could be used after raising construction as per the requirement and that the premises is being used as such. The allegation regarding material alteration was denied. 4. Based on the pleadings of the parties, the trial court framed six issues, where after, another suit filed by the respondent based on non-user was consolidated with the present suit and common evidence was led. On behalf of the respondent-plaintiff, three witnesses were examined and on behalf of the appellant-defendant, four witnesses were examined. 5. After hearing the parties, the trial court came to the conclusion that the suit plot was let out for the purpose of establishment of 'Oil Ghana' and admittedly the appellant has changed the user into residential. The issue pertaining to material alteration was held against the plaintiff. Based on its findings on change of user, the suit for eviction was decreed. The suit pertaining to non-user was also decreed. 6. Feeling aggrieved, the appellant filed first appeals. During the pendency of the appeal, an application under Order 41, Rule 27 CPC was filed, which application and appeal were rejected by the first appellate court by the impugned judgment dated 18/5/2016. The first appellate court upheld the finding pertaining to change of user and the finding regarding non-user was reversed, however, the decree for eviction was maintained. 7. During the pendency of the appeal, an application under Order 41, Rule 27 CPC was filed, which application and appeal were rejected by the first appellate court by the impugned judgment dated 18/5/2016. The first appellate court upheld the finding pertaining to change of user and the finding regarding non-user was reversed, however, the decree for eviction was maintained. 7. It is submitted by learned counsel for the appellant that both the courts below committed error in coming to the conclusion that there was change of user inasmuch as a bare look at the lease deed reveals that the plot in question was let out to the appellant with the stipulation to raise construction as per his requirement as well as to set up 'Oil Ghana' and, therefore, it cannot be said that on account of appellant using the part of premises for residential purpose, there is any change of user. It was further submitted that the courts below committed an error in relying on the rent note (Ex.1) in the presence of registered lease deed (Ex.A/1); the document Ex.6, which was of the year 1993, clearly indicated the appellant's user of the premises as residential, has been misconstrued and, therefore, the decree cannot be sustained. 8. Further grievance was raised regarding issues not being properly framed and that the courts below wrongly assumed the burden on the appellant. It was also submitted that the first appellate court committed error in dismissing the application filed by the appellant under Order 41, Rule 27 CPC. It was prayed that the judgments impugned be set aside. 9. Learned counsel for the respondent-plaintiff supported the judgments impugned and it was submitted that no substantial question of law is involved in the present second appeal as both the courts below have concurrently recorded the finding of fact pertaining to change of user from commercial/industrial to residential and, therefore, the appeal deserves to be dismissed. 10. I have considered the submissions made by the counsel for the parties and have perused the material available on record. 11. 10. I have considered the submissions made by the counsel for the parties and have perused the material available on record. 11. So far as dismissal of the application under Order 41, Rule 27 CPC by the appellate court is concerned, the appellate court found that the reason given for the late production of documents was that the counsel, who conducted the suit had died and, therefore, the documents which were lying with him were being filed as they were then made available, was factually incorrect inasmuch as similarly application was filed on 18/10/2007 before the trial court with an identical reason. Since the appellant chose to rely on the same reason for indicating that despite due diligence the documents could not be filed, the first appellate court was justified in rejecting the application as it was not the case of the appellant that the family members of the deceased lawyer handed over the documents in two installments and that also with a gap of over 7-8 years. 12. So far as the submissions made by counsel for the appellant pertaining to frame of the issue and the alleged burden is concerned, the suit remained pending from 1995 to 2009 and from 2009 to 2016 the appeal remained pending i.e. the litigation remained pending for long 20 years before the two courts below, wherein, the said aspect was not raised. It is too late in the day for the appellant to make any grievance about the frame of issue and the burden in this regard as the dispute before the trial court was well defined and besides the fact that the issue was rightly framed and burden was rightly placed, once the evidence is led by the parties, the said aspect goes into oblivion and, therefore, the said aspect also has no substance. 13. The language of the lease deed executed between the parties clearly gives out that though it has been indicated that the plot in question could be used by the tenant as per his wish, the said aspect is qualified from the subsequent line indicating that he would be free to set up Oil Mill or any other industry which would not be objected to by the landlord. The very fact that the specific mention of oil mill and/or any other industry has been made, the same qualifies the use of phrase that the tenant would be free to use the plot as per his wish. If the intention would have been to permit the combined/residential use as well, there was no reason not to indicate the same in the lease deed itself and, therefore, it cannot be said that under the lease deed Ex.A/1 the plot in question was let out to the appellant for its use as residential purpose. 14. Admittedly, the appellant was using the premises as residential premises. The plea raised is that the same was being used by the appellant since beginning and, therefore, the filing of the suit on the said ground was not permissible, as in that case, same would not be change of user. When the learned counsel for the appellant was required to point out his best document pertaining to the user of the premises as a residential premises, reliance was placed on Ex.6, which was filed along with the stay application, which is a report prepared by the STSP, which is dated 15/1/1993 and wherein the appellant has been shown as resident of Industrial Area, near Mahalaxmi Oils, Merta City, which clearly indicates that even as per that document of the year 1993, the appellant was not residing at the plot in question from where he was operating M/s Sati Mata Oil Mill, otherwise the address would have been of the said Oil Mill itself. Further, in the report itself there is a reference that owner's wife has got immovable property in Industrial Area, Merta City in the name of Shri Laxmi Oil Industry in which there is house and there is no machinery, where the owner was residing. The said report does not support the case of the appellant and on the other hand conclusively shows that in the year 1993 the appellant was not residing at the suit premises. 15. In view thereof, the fact that the premises was let out for setting up of 'Oil Ghana'/any industry, the same was not being used for the said purpose and user came to be changed by the appellant from commercial to residential is proved on record. 15. In view thereof, the fact that the premises was let out for setting up of 'Oil Ghana'/any industry, the same was not being used for the said purpose and user came to be changed by the appellant from commercial to residential is proved on record. The finding recorded by both the courts below is essentially a finding of fact and concurrent in nature, which does not give rise to any substantial question of law. Counsel for the appellant has also failed to show any perversity in the findings recorded by the two courts below. In view of the above discussion, no substantial question of law is involved in the present second appeal, the appeal has no substance and same is, therefore, dismissed.