JUDGMENT P.K. Lohra, J. - By the instant second appeal, appellant-defendants have challenged judgment dated 14th of July 2017, passed by Addl. District Judge No.1, Jodhpur Metropolitan, Jodhpur (hereinafter referred to as ;learned lower appellate Court'), dismissing their first appeal against judgment dated 30th of October, 2012 rendered by Addl. Civil Judge (J.D.) No.5, Jodhpur Metropolitan (for brevity, ;learned trial Court'). 2. Apposite facts for the purpose of this appeal are that first respondent-plaintiff, a registered public trust, instituted a suit against appellants and proforma respondent seeking relief of vacating open land (Thala) and perpetual injunction. The suit for eviction at the behest of respondent Trust was essentially founded on two grounds; namely, subletting of rented premises, and material alteration without any permission of the landlord. For substantiating the ground of subletting, respondent-plaintiff alleged that the appellants were tenant but they have inducted sub-tenant, proforma respondent, in the premises. As there was specific averment about unauthorized construction sought to be raised at the site by the appellants, the respondent Trust also claimed perpetual injunction for restraining them in this behalf. 3. The suit is contested by appellants questioning authority of the Secretary of the respondent Trust to lay suit on behalf of the Trust. While repudiating the allegation of sub-letting, it is interalia pleaded by the appellants that proforma respondent is their employee and as such there is no question of sub-letting of premises to him. The allegation of material alteration in the premises is also denied by the appellants. 4. Learned trial Court, on the basis of pleadings of rival parties, settled five issues for determination. For proving its case, respondent-plaintiff tendered three affidavits but first witness P.W.1 Chanchal Kumar did not appear for cross-examination. However, on behalf of Trust, the other two witnesses; namely, P.W.2 Shanti Chand and P.W.3 Sanjay Mehta were examined. In counter, all the three defendants appeared in the witness box to authenticate their defence. 5. The learned trial Court, thereafter, heard final arguments and decided Issue No.1 regarding sub-letting against the respondent Trust, however, while deciding Issue No.2 relating to material alternation in the premises, without due permission of landlord, the learned trial Court, upon appreciation of evidence, found that the appellants have carried out material alteration without there being any permission of the landlord. With this finding, the learned trial Court decided Issue No.2 affirmatively in favour of respondent Trust.
With this finding, the learned trial Court decided Issue No.2 affirmatively in favour of respondent Trust. Likewise, Issue No.3 is decided in favour of respondent Trust and the learned trial Court declared that the respondent Trust is entitled for possession of the disputed property. Learned trial Court also decided Issue No.4 in favour of respondent-plaintiff and awarded mesne profit for use and occupation of the premises @ Rs. 500/- per month. Adverting to Issue No.5, which was settled on the basis of pleadings of the appellants, the learned trial Court recorded its definite finding that appellants have miserably failed to substantiate their objections mentioned in the additional pleas of written statement. On the contrary, while relying on the factum of respondent Trust being a public trust, the learned trial Court also decided Issue No.5 in favour of respondent Trust and against the appellants by holding that Secretary of a Public Trust is entitled to maintain suit on its behalf. 6. Feeling aggrieved by the judgment and decree passed by learned trial Court, appellants and proforma respondent preferred appeal before the learned lower appellate Court and the leaned lower appellate Court by the impugned judgment affirmed the decree passed by learned trial Court. The learned lower appellate Court, upon reappreciation of evidence, found that decision on all the issues is based on sound appreciation of evidence and, therefore, calls for interference. 7. Upon perusal of the impugned judgment of learned lower appellate Court, it is amply clear that learned lower appellate Court, even while recording its concurrence with the finding and conclusion of the learned trial Court, has made sincere endeavour to analyze the evidence de-novo in adherence to Order XLI, Rule 31 CPC. 8. Mr. Gaur, 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 available 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 evidence was completely overlooked. Mr. Gaur submits that even if there is a concurrent finding of fact, this Court is not loathed with the power to examine the perverse findings recorded by the Courts below.
Mr. Gaur submits that even if there is a concurrent finding of fact, this Court is not loathed with the power to examine the perverse findings recorded by the Courts below. Learned counsel has urged that misconstruction of available evidence and eschewing material evidence by both the Courts below is sufficient to render impugned judgments & decrees vulnerable. It is also submitted by learned counsel that substantial questions of law are involved in present appeal, which require adjudication by this Court. 9. Mr. O.P. Boob, learned counsel for the respondents-plaintiff submit 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 counsel contends that both the learned Courts below have recorded concurrent findings based on sound appreciation of documentary and oral evidence, which cannot be disturbed in second appeal. It is also contended that for entertaining a second appeal, involvement of substantial question of law is sine-qua-non and the present appeal is bereft of any question of law much less substantial question of law. Learned counsel has lastly urged that the unison finding of both the Courts below sought to be impugned in the present appeal is based on proper appreciation of evidence, as such, do not call for any interference under section 100 CPC. 10. Mr. Shah, learned counsel for the respondent No.2 supported the case of appellants. I have heard learned counsel for the parties, perused the impugned judgments and examined the record of the Courts below. 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. 11. I may also 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 fact and it is trite that while exercising second appellate jurisdiction, Court cannot enter into factual arena. Therefore, in absence of any substantial question of law involved in present appeal, no interference is warranted in exercise of jurisdiction under section 100 CPC. In view of foregoing discussion, I find no merit in the instant appeal, and therefore, the same is accordingly dismissed. The stay petition is also dismissed.