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2018 DIGILAW 1901 (RAJ)

Asha Rani v. Sarswati Devi

2018-09-12

P.K.LOHRA

body2018
JUDGMENT 1. Loosing successive legal battles before the Courts below to shuttle eviction proceeding of the disputed premises launched by the respondent/plaintiffs, appellants have enthusiastically continued their pursuit for justice before this Court by laying the instant appeal. 2. Appellants-Defendants by this second appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, CPC) have assailed impugned judgment & decree dated 23rd of May 2018, passed by District Judge, Sri Ganganagar (for short, learned first Appellate Court) in Civil Appeal No. 16/2012, whereby learned first Appellate Court has confirmed judgment & decree dated 30th of May, 2012 passed by Addl. Civil Judge, Sri Ganganagar (for short, learned trial Court). 3. Ritualistic facts of the case are that respondent-plaintiffs laid a suit for eviction and recovery of rent against appellant-defendants on the ground of default in payment of rent besides other grounds; viz. material alteration in the premises and denial of title, by invoking various clauses of sub-section (1) of Section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (for short, Act of 1950). It is inter-alia averred in the plaint that the shop in question came to the share of respondent No. 2 in family settlement and as such he became owner of the disputed rented shop. Plaintiffs have also averred that appellant-defendants while acknowledging second respondent as landlord started paying rent to him. With these positive assertions in the plaint, respondent-plaintiffs asserted landlord-tenant relationship between rival parties. 4. For substantiating the ground of default under Section 13(1)(a) of the Act of 1950, it is inter-alia averred in the plaint that appellant-defendants neither paid nor tendered rent to the respondent-plaintiffs since February 1999, and therefore they are defaulters in payment of rent. As per the version of the respondent-plaintiffs, on the date of filing of the suit, almost four years' rent was due from the appellant-tenants. In the relief clause, therefore, respondent-plaintiffs claimed a decree for arrears of rent to the tune of Rs. 25,200/- besides determination of provisional rent @ Rs. 3,000/- per mensem. 5. Apart from buttressing the ground of default in payment of rent, it is, inter-alia, averred in the plaint that appellant-defendants (tenants) are liable to be evicted for making material alterations in the rented premises without permission of the landlord. 25,200/- besides determination of provisional rent @ Rs. 3,000/- per mensem. 5. Apart from buttressing the ground of default in payment of rent, it is, inter-alia, averred in the plaint that appellant-defendants (tenants) are liable to be evicted for making material alterations in the rented premises without permission of the landlord. In order to substantiate this plea, it is pleaded in the plaint that appellant-defendants have raised unauthorized construction on the roof of the suit premises, inasmuch as neither permission was obtained from respondent-plaintiffs, nor requisite sanction from the Municipal Board. A yet another ground is set out in the plaint for eviction by the respondent-plaintiffs, as envisaged under 13(1) (f) of the Act of 1950. As per the version of the respondent-plaintiffs, appellant tenants have renounced their character as landlord of the premises, which is sufficient for their eviction. 6. The suit was contested by appellant-defendants by filing written statement, inter-alia, denying tenancy of the shop in question and their relationship with appellant-plaintiffs as that of landlord and tenant. In the counter, it was averred that the shop in question was purchased by Mangatram from Ramesh Kumar for a consideration amount of Rs. 4,000 through agreement dated 28.03.1979 and after death of Mangatram they are carrying on business in the said shop. They denied paying any rent of the disputed shop upto 31.03.1979 and pleaded that as the shop in dispute is their purchased one, as such, no question of paying rent or default in payment of rent arises. The title of plaintiffs was denied stating that forged agreement dated 15.02.1993 was prepared in order to harm them, therefore, defendant No. 1 got registered a case with police. It was further averred that forged and fabricated copies of documents were submitted before the Urban Improvement Trust for regularization in order to davour the shop and FIR No. 417/02 was lodged by the plaintiffs. 7. Appellants/Defendants, in the written statement, emphasized that they are not tenant of the shop but in fact are owner inasmuch as in this regard no objection was ever raised by plaintiffs till 2002. Defendants in the return set up a case that after purchasing premises in the year 1979, it was renovated and shop was constructed. Asserting that previously Mangatram and then after his death as decedents of Late Mangatram, defendants are in possession of the disputed premises in the name of Mahaveer Industries. Defendants in the return set up a case that after purchasing premises in the year 1979, it was renovated and shop was constructed. Asserting that previously Mangatram and then after his death as decedents of Late Mangatram, defendants are in possession of the disputed premises in the name of Mahaveer Industries. Defendants further averred that Addl. Collector, Land Conversion had issued notice to Mangatram for regularization and electricity connection was taken after construction of the shop. Further at the time of electricity connection, no objection was raised by the plaintiffs and about two years back when first floor was constructed then too no objection was raised by them despite having full knowledge about the construction. In totality, the case of the defendants was that when the shop was constructed in the year 1979 itself, there was no question of purchasing vacant land in year 1993 and branded the agreement and power of attorney as forged one. With these averments, the appellant-defendants prayed for rejection of the suit with costs. 8. Learned trial Court, on the basis of the pleadings of rival parties, framed as many as 14 issues for determination. In support of their case, respondent-plaintiffs examined PW-1 Durgesh, PW-2 Dalip & PW-3 Ramesh Kumar and exhibited documents Exs.1 to 5, while on behalf of appellant-defendants DW-1 Roshanlal was examined and Exs.A-1 to A-20 were exhibited. The learned trial Court, on the basis of pleadings of rival parties, settled the issues and thereafter recorded evidence of rival parties. Finally, the learned trial Court, by its judgment & decree decreed the suit. Feeling aggrieved by the same, appellants preferred appeal before District Judge, Sri Ganganagar, who affirmed the judgment & decree of learned trial Court by dismissing the appeal. 9. Mr. Sandeep Saruparia, learned counsel for the appellants, submits that the findings of learned Courts below are perverse and not in consonance and conformity with the evidence and other materials on record. Learned counsel would contend that both the Courts below have not examined the lis involved in the matter in right perspective and, while non-suiting the appellants, material facts were completely overlooked. Mr. Saruparia submits that even if there is a concurrent finding of fact, this Court is not loathed with the power to examine the perversity of the findings recorded by the Courts below. Mr. Mr. Saruparia submits that even if there is a concurrent finding of fact, this Court is not loathed with the power to examine the perversity of the findings recorded by the Courts below. Mr. Saruparia further submits that the material contradictions in the testimony of witnesses of respondents have been completely eschewed by both the learned Courts below rendering the impugned judgments & decrees vulnerable. Elaborating his submission in this behalf, Mr. Saruparia submits that it is a case of total misreading of evidence and documents on record, and therefore substantial questions of law involved in present appeal require adjudication by this Court. 10. On the other hand, learned counsel for appellant-defendants, Mr. Muktesh Maheshwari, submits that it is pure and simple case of concurrent finding of fact recorded by both the Courts below, and therefore the impugned judgments require no interference in this second appeal. Mr. Maheshwari contends that both the learned Courts below have recorded the concurrent findings based on documentary and oral evidence, which cannot be disturbed in second appeal. Mr. Maheshwari, learned counsel would contend that for entertaining a second appeal, involvement of substantial question of law is sine-quanon but no substantial question of law is involved in present appeal and the findings which are sought to be impugned in the appeal are based on facts and appreciation of evidence as such do not call for any interference by this Court under Section 100 CPC. I have heard learned counsel for the parties, perused the impugned judgment & decree of the first Appellate Court as well as learned trial Court, and also gone through relevant record of the learned Courts below courtesy rival counsels. 11. Situation of the appellants, after successive unfavourable adjudications by the Courts below, has become abysmal or at best alike maelstrom or commotion. Normally, at the stage of second appeal, concurrent findings of fact by two courts below is not tinkered with. While examining concurrent findings of fact, scope for interference in second appeal is very limited and circumscribed. Interference under such contingencies is warranted where trial Court and/or first appellate Court misdirected themselves in appreciating question of law, or recorded perverse finding based on misreading of evidence or no evidence. While examining concurrent findings of fact, scope for interference in second appeal is very limited and circumscribed. Interference under such contingencies is warranted where trial Court and/or first appellate Court misdirected themselves in appreciating question of law, or recorded perverse finding based on misreading of evidence or no evidence. The Legislature, after amendment by Act 104 of 1976 (w.e.f. 1.2.1977), has made sincere endeavour to minimize litigation, ensure fair trial in accordance with accepted principles of natural justice, to expedite disposal of civil suits, introduced restriction on second appeals under the Code. Essentially, creation of powers or confining such power of the appellate authorities is founded on public policy enunciated in the maxim "interest reipublicae ut sit finis litium" which means - in the interest of society as a whole, litigation must come to an end. 12. The CPC amending Act 1976 postulates with clarity and precision that High Court while exercising jurisdiction under Section 100 must adhere to the procedure and conditions prescribed therein and not to add or enlarge the conditions of appeal. Therefore, the Court must satisfy itself that a substantial question of law is involved and then formulate the same on which the appeal can be heard. In abstract sense, it can very well be said that the Court while hearing second appeal cannot decide the same on merely equitable grounds. Legal precedents are also clear and unequivocal that concurrent findings of fact, however erroneous, cannot be disturbed under Section 100 CPC. 13. Although Law mandates stringent requirement for entertaining second appeal, i.e. involvement of substantial question of law in an appeal but under the Code the term "substantial question of law" is not defined. The Court feels that prefix "substantial" has qualified a question of law so as to construe the same meticulously relying on legislative intent. Thus, the term "substantial question of law" can be defined as a question having subsistence, essential, truly of sound worth, exigent or considerable. In other words, it is to be understood something very special in contradistinction with purely technical, of no substance or consequence or merely academic. Likewise, a point of law, which gives rise to two opinions, may be construed as a proposition of law but by no means a substantial question of law. 14. In other words, it is to be understood something very special in contradistinction with purely technical, of no substance or consequence or merely academic. Likewise, a point of law, which gives rise to two opinions, may be construed as a proposition of law but by no means a substantial question of law. 14. Upon close scrutiny of the judgments rendered by both the Courts below, it is clearly apparent that crucial finding and conclusion on issues No. 3 & 4 recorded by them is based on some evidence. Simply because that evidence according to the appellant is insufficient or inadequate, it is rather difficult to fathom concurrent finding perverse or based on misreading of evidence. In exercise of jurisdiction under Section 100 CPC, reassessment, re-appreciation and making a roving enquiry by entering into factual arena of the case is not contemplated. 15. Factum of provisionally determining amount of rent under Section 13(3) of the Act of 1950 and striking out defence of the appellants too was objectively examined by both the Courts below in conjunction with other evidence and material to record concurrent finding on crucial issues No. 3 & 4. In totality, grounds urged in the memo of appeal, to assail said unison finding, are not convincing touching real question of law much less substantial question of law. I am constrained to observe that appellants have miserably failed to make out a debatable question of law, not been settled by statute or binding precedent having material bearing on the outcome of the case. 16. The other issues, being ancillary to both these issues, are also decided by both the Courts below meticulously, while discussing evidence and conduct of the appellants. Refraining to make any comment on pending criminal case against appellants for offences U/s 420, 467, 468 and 471 IPC, in respect of an agreement to sale sought to be projected by them as title of disputed premises, in my opinion, it has per se exposed their defence to the advantage of respondent/plaintiffs facilitating decision on issue No. 6 against the appellants. Likewise, issue No. 7 too is decided by both the Courts below by relying on requisite ocular and documentary evidence available on record. Likewise, issue No. 7 too is decided by both the Courts below by relying on requisite ocular and documentary evidence available on record. If the grounds for assailing impugned concurring judgments and the substantial questions of law suggested in memo of appeal are objectively examined then, it clearly emerges out that appellants are craving for re-appreciation of evidence, which is not warranted. 17. The unison findings of fact, recorded by both the Courts below, upon evaluation of evidence and other materials available on record, sufficiently demonstrate that afflictions of the appellants are wholly untenable. As a matter of fact, concurrent finding of fact recorded by both the Courts below is in consonance and in conformity with evidence and other materials available on record. Legal position is no more res integra that in exercise of powers under Section 100 CPC, it would be unwise and imprudent to enlarge the scope of judicial review so as to treat even an erroneous decision of a final Court of law and facts, i.e., first appellate Court, vulnerable. In other words, jurisdiction of this Court in second appeal is not available to correct the errors of law or erroneous findings recorded by first appellate Court vis-a-vis questions of law unless such question of law be a substantial one. Therefore, upon close scrutiny of the impugned concurring judgments, in my view, no substantial question of law is forthcoming requiring adjudication in this appeal. Upshot of the above discussion is that the instant appeal fails and the same is hereby dismissed.