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2018 DIGILAW 2135 (RAJ)

LRS of Veer Bhan Singh v. Oswal Singh Sabha

2018-10-25

P.K.LOHRA

body2018
JUDGMENT : P.K. Lohra, J. Appellant-Defendants have laid this second appeal under Section 100 CPC to assail judgment & decree dated 16th of February, 2018, passed by Addl. District Judge No.4, Jodhpur Metropolitan (for short, 'learned first appellate Court'), whereby learned first appellate Court has affirmed the judgment and decree dated 15th of March, 2017, passed by Addl. Civil Judge & Metropolitan Magistrate No.3, Jodhpur Metropolitan (for short, 'learned trial Court'), allowing the suit of the plaintiff-respondent for arrears of rent and eviction. 2. Brief facts of the case are that respondent-plaintiff laid a suit for eviction & recovery of arrears of rent against appellant-defendants on the ground of default in payment of rent, inter-alia, stating therein that the suit premises, Quarter No.14, Girdhari Singh Ji Ka Nohra, Near Mahatma Gandhi School, Jodhpur, was rented out to Veerbhan Singh, the ancestor of defendants, on monthly rent of Rs. 4, but he defaulted in payment of rent as such earlier also a suit was filed in the Court of Addl. Munsif Magistrate No.1, Jodhpur for eviction on the ground of default in payment of rent. The plaint further averred that Late Veerbhan Singh moved an application under Section 13(4) of the Rent Act on 11.08.1965 showing his willingness to deposit outstanding rent and expenses and the Court determining the rent disposed of the matter on 26.08.1965, however, despite taking benefit of first default, payment of rent was again discontinued, therefore, another suit for possession of suit premises and arrears of rent was filed, to which written statement was filed by original defendant denying the title of plaintiff, but later on he compromised the matter and accordingly a decree was passed on 07.02.1967. The plaintiff further pointed out in the plaint that earlier the property in question was with Receiver appointed in Civil Original Suit Nos.146/78 and 135/95, which were pending in the Court of Addl. District Judge No.3 but later on the services of Receiver came to an end on 30.10.1996 in view of judgment and decree passed in those matters and the property in question was handed over to the plaintiff on 31.12.1996, which is being looked after by the plaintiff since then. District Judge No.3 but later on the services of Receiver came to an end on 30.10.1996 in view of judgment and decree passed in those matters and the property in question was handed over to the plaintiff on 31.12.1996, which is being looked after by the plaintiff since then. As per plaint, the rent was paid to the Receiver only upto June 1995 and thereafter neither the rent was tendered to the Receiver nor to the plaintiff after 31.12.1996, as such, the appellant-defendants have become unauthorized occupants and are liable to be evicted. With these averments the plaintiff prayed for decreeing the suit with costs. 3. Appellant-Defendants filed written statement to the suit but as the right to defend was already closed vide order dated 29.08.2011, the same was not taken into consideration by the trial Court. 4. Learned trial Court, on the basis of the pleadings, framed two issues for determination. In support of their case, respondent-plaintiff examined two witnesses PW1 Prasann Chand and in documentary evidence produced Exs.1 to 9. Finally, the learned trial Court, by its judgment & decree dated 15.03.2017 decreed the suit against appellant-defendants. Feeling aggrieved by the same, appellants preferred an appeal before the first appellate Court. The first appellate Court dismissed the appeal and affirmed the judgment & decree of learned trial Court. 5. Mr. P.M. Vyas, 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. Vyas 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. Vyas further submits that as regards powers of the Secretary of respondent-plaintiff to take proceedings in the matter on behalf of plaintiff cannot be given credence by mere marking of exhibits in absence of any evidence of its members. Mr. Mr. Vyas further submits that as regards powers of the Secretary of respondent-plaintiff to take proceedings in the matter on behalf of plaintiff cannot be given credence by mere marking of exhibits in absence of any evidence of its members. Mr. Vyas contended as there was no marking of numbers on the quarter adverse inference could not have been drawn against the appellant-defendants, which renders the impugned judgments & decrees vulnerable and therefore substantial questions of law are involved in present appeal which require adjudication by this Court. 6. Mr. R.K. Thanvi, learned Senior Advocate assisted by Mr. Narendra Thanvi, appearing for respondent-plaintiff 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. Learned Senior Counsel, Mr. Thanvi, contends that both the learned Courts below have recorded the concurrent findings based on sound appreciation of documentary and oral evidence, which cannot be disturbed in second appeal. It is contended that for entertaining a second appeal, involvement of substantial question of law is sine qua non but no substantial question of law is involved in present appeal and the findings, which are sought to be impugned in the present appeal, are based on facts and appreciation of evidence as such do not call for any interference by this Court under Section 100 CPC. 7. I have heard learned counsel for the parties, perused the judgments of first appellate Court as well as learned trial Court. 8. Upon perusal of the judgments rendered by both the Courts below, in my opinion, both the Courts below have not committed any error much less manifest error in appreciation of evidence. The finding of fact recorded by learned trial Court is based on sound appreciation of evidence and the learned first appellate Court, while examining the matter de novo in the light of available material, has fully concurred with the evidence and conclusions of the learned trial Court. Therefore, the instant one is a case wherein both the Courts below have recorded concurrent finding of fact based on proper appreciation of evidence. Therefore, the instant one is a case wherein both the Courts below have recorded concurrent finding of fact based on proper appreciation of evidence. The legal position is no more res integra that in second appeal normally Court is not expected to interfere with the concurrent finding of fact unless it is shown that finding is perverse, contrary to evidence available on record, or recorded in ignorance of vital evidence. No such situation is forthcoming in the instant appeal. This being the position, I am constrained to observe that no question of law much less substantial question of law is forthcoming in the instant appeal requiring adjudication in exercise of second appellate jurisdiction. The so called proposed substantial questions of law are pure questions of facts and it is trite that while exercising second appellate jurisdiction, Court cannot enter into factual arena. In absence of any substantial question of law involved in present appeal, no interference is warranted in exercise of jurisdiction under Section 100 CPC. 9. In view of foregoing discussion, I find no merit in the instant appeal, and therefore, the same is accordingly dismissed.