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2019 DIGILAW 782 (MP)

Sita Ram v. Nagar Panchayat Khetia

2019-11-13

VIVEK RUSIA

body2019
JUDGMENT 1. This appeal has been filed by the plaintiff against the judgment and decree dated 29.8.2016 passed by Civil Judge, Class-II, Khetiya, District Barwani and judgment dated 3.8.2018 passed by First ADJ, Sendhwa, District Barwani whereby the civil suit as well as the first appeal both have been dismissed. 2. Facts of the case in short are as under : 3. The plaintiff has instituted a civil suit for permanent injunction against the defendants contending that he was given a shop situated near bus stand barrier ad-measuring 15x15 feet on rent by the defendant/Municipal Council, Khetiya. He is running the a restaurant in the said shop in the name of 'Om Sai'. By the passage of time he has carried out various repair works in the said shop. The defendant issued the notice dated 28.7.2012 calling upon him to vacant the said shop as the same is in dilapidated condition. He is paying rent of Rs. 710/- per month. He is tenant in the disputed shop for the last 25-30 years and he is having relationship with the defendant as landlord and tenant. The plaintiff further submitted that the shop is not under the dilapidated condition despite that the defendants are trying to dispossess him illegally since last 2 - 3 years on different pretext like encroachment and dilapidated condition etc. Earlier, a notice was issued dated 28.2.2010 alleging that the plaintiff is an encroacher in the shop. Vide notice dated 28.7.2012, the defendants have terminated the tenancy w.e.f. April, 2012 vide resolution No. 308 dated 27.7.2012. The plaintiff further pleaded that the shop is in very good condition and the same does not requires any demolition. Earlier, the defendants approached the SDM and the SDM registered the case under section 133 of the CrPC against the plaintiff and thereafter, directed to hand over the vacant possession. The plaintiff was not given any notice or any opportunity of hearing before passing the said order, hence, the same is not binding on him. 4. After notice, the defendants have filed their joint written statements by submitting that the disputed shop is in dilapidated condition which requires demolition for the safety of public at large. There is no malafide behind the issuance of notice. The tenancy of the plaintiff has been terminated by the Council. 5. The learned trial Court has framed 4 issues for adjudication. There is no malafide behind the issuance of notice. The tenancy of the plaintiff has been terminated by the Council. 5. The learned trial Court has framed 4 issues for adjudication. Both the parties examined their witness and produced the documentary evidence. 6. After appreciating the evidence came on record, vide judgment dated 29.8.2016, the learned Civil Judge had dismissed the suit by holding that the plaintiff has failed to prove his case that the shop is not in dilapidated condition and the defendants are trying to dispossess him illegally. 7. Being aggrieved by the aforesaid order, the plaintiff preferred First Appeal, but that too has been dismissed vide judgment dated 3.8.2018. hence, the present second appeal before this Court. 8. Counsel for the appellant submits that the plaintiff has successfully proved that he is in legal possession on account of tenancy with the defendant. Since, the defendants have issued notice that the shop in question is in dilapidated condition which requires eviction and demolition, therefore, burden was on them to proved this fact. 9. The learned trial Court has wrongly shifted the burden on the plaintiff to prove the condition of the shop in question. Before issuance of the notice, the provisions of section 221 of the Municipalities Act, 1961 have not been followed. The Commissioner has not recorded its satisfaction as contemplated under section 221 of the Act. Hence, the appeal is liable to be admitted on the proposed substantial questions of law. 10. I have heard Shri Aniket Naik, learned counsel for the appellant and perused the record. 11. The shop in question was given on rent to the the plaintiff and he is paying rent. There is no dispute of landlord and tenant relationship between the plaintiff and the defendants. The plaintiff approached the civil Court after receipt of the notice from defendants calling upon him to vacant the same as the same is in dilapidated condition. The plaintiff has alleged that the defendants are trying to dispossess him illegally without following the due process of law. It is settled law that the plaintiff who approaches the Court must prove his case by way of cogent evidence. The contention of the petitioner is that the shop is not in dilapidated condition so as to warrant eviction and demolition, therefore, the burden is on plaintiff to establish this fact. It is settled law that the plaintiff who approaches the Court must prove his case by way of cogent evidence. The contention of the petitioner is that the shop is not in dilapidated condition so as to warrant eviction and demolition, therefore, the burden is on plaintiff to establish this fact. He did not make any effort to get the shop inspected by seeking appointment of a technical person as Commissioner under the provisions of Order 26 rule 9 of the CPC. He did not submit any report of technical expert or get the shop examined by an Engineer to establish that the shop is in a safe condition or is not in a dilapidated condition. The defendants are having power under section 221 of the Municipalities Act to issue notice if the shop or structure is in dilapidated condition. The defendants have not filed any suit for eviction, therefore, the burden can not passed on them to prove this fact. 12. The plaintiff came up before the Civil Court alleging that the defendants are trying to dispossess him illegally without following the due process of law. Therefore, it is simple case of permanent injunction in which the learned trial Court has rightly shifted the burden on plaintiff to prove that the defendants are trying to dispossess him illegally. 13. Learned counsel for the appellant raised an issue that section 221 of the Act provides for numerous contingencies before taking any action by the Municipal Council. The power is vested with the Council not with the Chief Municipal Officer to issue the notice under section 221 of the Act. 14. It is important to mention here that such issue has not been raised by the plaintiff before the Civil Court as well as before the appellate Court. First time, he is raising the issue before this Court. However, this is a disputed question of fact as well as law. Though, under section 221 of the Act the word "Council" is used, but Chief Municipal Officer of the Municipal Council is empowerd to give effect to the decision taken in accordance with the provisions of this Act and Rules by the Council. The defendants have specifically pleaded in their written statements that the Municipal Council has taken the decision vide Resolution No. 308 dated 27.7.2012 for issuance of notice to the plaintiff and thereafter, notice was issued by them. The defendants have specifically pleaded in their written statements that the Municipal Council has taken the decision vide Resolution No. 308 dated 27.7.2012 for issuance of notice to the plaintiff and thereafter, notice was issued by them. The Council took decision for the safety of public and there is no malafide attached to it. section 221 of the Municipalities Act, 1961 provides two contingencies and in case of imminent danger, the Council shall have the power to demolish portion of the building or structure as is likely to endanger to life without giving notice of demolition and in case where the danger is not imminent, the Council shall issue show cause notice to the owner or occupier either to carry out the repair or to remove the structure. It is the satisfaction of the Council that any building or structure is in a dangerous condition which requires either repair or demolition. 15. In the present case, this Court has directed the Executing Engineer, PWD to submit a current status report of shop in question. Vide letter dated 5.9.219, the Executive Engineer submitted the report by mentioning that the shop was constructed in the year 1978, hence it is 41 years old. There is a plaster and putty in the inside wall of the shop. The roof is covered by profile sheet, therefore, he is not in a position to give the report. He has filed the photographs of the shop and in one of the shop, the roof has been given support by way of iron structure inside the shop which clearly establishes that the shop is in dilapidated condition and is under the support of iron structure. Therefore, there is no illegality in issuance of notice to the plaintiff for eviction of the shop as the same is in dilapidated condition. Both the Courts below have concurrently recorded the findings of fact. 16. It is settled law that the scope of interference by the High Court under section 100 of the CPC in second appeal is very limited. Both the Courts below have concurrently recorded the findings in favour of the plaintiffs and decreed the suit in their favour. Hon'ble the apex Court in the catena of judgments has decided the scope of interference by the High Court in second appeal with the concurrent findings recorded by both the Courts below. Both the Courts below have concurrently recorded the findings in favour of the plaintiffs and decreed the suit in their favour. Hon'ble the apex Court in the catena of judgments has decided the scope of interference by the High Court in second appeal with the concurrent findings recorded by both the Courts below. Even otherwise, the apex Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar : (1999) 3 SCC 722 , has held as under: 5. 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. 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 were 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. 6. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate Court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate Court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey [ AIR 1976 SC 830 ]held that whether the trial Court should not have exercised its jurisdiction differently is not a question of law justifying interference. In case of Laxmidevamma v. Ranganath : (2015) 4 SCC 264 , again the apex Court has held as under : 16. Based on oral and documentary evidence, both the Courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the Courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained. Recently, the apex Court in case of Adiveppa and others v. Bhimappa and others : (2017) 9 SCC 586 has held as under : "17. Recently, the apex Court in case of Adiveppa and others v. Bhimappa and others : (2017) 9 SCC 586 has held as under : "17. Here is a case where two Courts below, on appreciating the entire evidence, have come to a conclusion that the plaintiffs failed to prove their case in relation to both the suit properties. The concurrent findings of facts recorded by the two Courts, which do not involve any question of law much less substantial question of law, are binding on this Court. 18. It is more so when these findings are neither against the pleadings nor against the evidence and nor contrary to any provision of law. They are also not perverse to the extent that no such findings could ever be recorded by any judicial person. In other words, unless the findings of facts, though concurrent, are found to be extremely perverse so as to affect the judicial conscious of a judge, they would be binding on the appellate Court." Hence, I do not find any substantial question of law involved in the appeal which is hereby dismissed.