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2021 DIGILAW 220 (MP)

Kedar Singh v. Pradeep Kumar Jain

2021-02-24

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. 1. With consent of the parties the matter is heard on admission. 2. The present appeal under Section 100 of CPC has been preferred by the appellant against the judgment and decree dated 30.06.2014 passed by the III Additional District Judge, Gwalior in Civil Appeal No. 10-A/2014 confirming the judgment and decree dated 28.09.2012 passed by Vth Civil Judge, Class-I, Gwalior in Civil Suit No. 44-A-A/2011. 3. It is alleged by learned counsel for the appellant that the plaintiff-respondent-landlord has filed a civil suit for eviction with respect to the premises i.e. non residential accommodation situated in Ganj Morar, Gwalior. It is alleged that the plaintiff is a owner of the property in question and the aforesaid property has been given on rent @ Rs. 800/- per month to the defendant/tenant. It is submitted that the defendant-appellant is in habit of not paying the rent on regular basis and he has created a subtenancy in the premises in question and has given the shop in question to one Atish Kumar Jain who is carrying out the business of grains in the aforesaid shop in question. Therefore, the eviction civil suit was filed for on two grounds non-payment of rent timely and on the basis of Section 12(1)(b) of M.P. Accommodation Control Act (for short 'Accommodation Act') creating a subtenancy. 4. The defendant by filing the written statements has denied all the plaint's averments and contending therein that the rent is being deposited and no subtenancy is being created, he himself is carrying on the business in the premises in question. The trial Court has framed as many as five issues, and after getting evidences from the rival parties and after providing opportunity of hearing to them, has finally decided the civil suit vide its judgment and decree dated 28.09.2012 and has found that the property in question is being given on subtenancy to Atish Kumar Jain who is carrying out the business activities and the defendant has created a subtenancy in the matter. In such circumstances, the decree of eviction dated 28.09.2012 was granted in favour of the plaintiff and the defendant was directed to handover the vacant possession of the property to the plaintiff/respondent within a period of one month. In such circumstances, the decree of eviction dated 28.09.2012 was granted in favour of the plaintiff and the defendant was directed to handover the vacant possession of the property to the plaintiff/respondent within a period of one month. The appeal was preferred by the defendant which was registered as Regular First Appeal No. 10-A/2014 on the ground that the learned trial Court has not appreciated the evidence correctly. Appellate Court has affirmed the judgment and decree passed by the trial Court despite of the fact that there are clear denial with respect to the averments of the plaints as well as evidences available on record. It is submitted that Atish Kumar Jain is working as a Palledar in the shop in question and entire business is being carried out by the defendant only. In such circumstances and without appreciating the evidence available on record, the trial Court has wrongly passed the judgment and decree. The Appellate Court after hearing the parties at length and going through the entire record of the trial Court has affirmed the judgment and decree passed by the learned trial Court and has held that there is no illegality in the judgment passed by the learned trial Court and accordingly, has dismissed the appeal vide its judgment and decree dated 30.06.2014. Being aggrieved by the judgment and decree passed by the both the Courts' below, the present second appeal has been filed. It is argued that no grounds of granting eviction decree under Section 12(1)(b) of Accommodation Act is made out as from the evidences available on record, the same is not proved. 5. He has drawn attention of this Court to the statement of PW/1 particularly, para 10, 11, 12 and 19, wherein he has specifically denied that Atish Kumar Jain is being handed over the property in question and he is carrying out the business. Further he has drawn attention of this Court to statement of PW/2 particularly paras, 5, 6, 9 and 10, wherein, who has supported the version of PW/1. Even DW/2 Atish Kumar Jain, statement was being brought to the knowledge of this Court and has argued that the Atish Kumar Jain has admitted in his statement that he is working as Palledar in the property in question and no documents is being filed by the plaintiff to demonstrate subtenancy. 6. Even DW/2 Atish Kumar Jain, statement was being brought to the knowledge of this Court and has argued that the Atish Kumar Jain has admitted in his statement that he is working as Palledar in the property in question and no documents is being filed by the plaintiff to demonstrate subtenancy. 6. The ground 12(1)(b) of Accommodation Act is required to be specifically established by the plaintiff while getting the eviction decree. The learned trial court has failed to consider all these aforesaid aspects and has out rightly granted the decree of eviction under Section 12(1)(b) of Accommodation Act in favour of the plaintiff. He has drawn attention of this Court to Section 12(1)(b) of the Accommodation Act and has argued that the eviction of decree is only be granted, when the plaintiff establishes the fact by leading evidence that subtenancy is being created. There is noting on record to show that any point of time subtenancy is being created. He has framed the substantial questions of law with respect to Section 12(1)(b) of Accommodation Act that the initial burden to create subtenancy is on the land lord, then the burden of proof shifting on tenant to disprove that the accommodation is not sublet and in the present case the plaintiff was unable to shift the burden approving subtenancy. In such circumstances, the question of law is available in the appeal. Counsel for the appellant has placed reliance upon the judgment in the case of Abdul Rehman Vs. Mst. Khatun reported in 1984 M.P. Weekly Notes 14 and in the case of Smt. Satya Vs. Teja Singh reported in AIR 1975 SC 105 in support of his contentions that 12(1)(b) of Accommodation Act is not established in the facts and circumstances of the case and the burden is upon the land lord to establish the same and thereafter, the burden shifts upon the tenant and in the alternative, he has made a prayer that in case the appeal is not admitted, then reasonable time may be granted to vacate the premises in question as he is carrying out the business since long. 7. Per contra, learned senior counsel for the respondent has vehemently opposed the arguments made by the appellant and has argued that there are concurrent findings of both the Courts below with respect to creation of subtenancy by the defendant. 7. Per contra, learned senior counsel for the respondent has vehemently opposed the arguments made by the appellant and has argued that there are concurrent findings of both the Courts below with respect to creation of subtenancy by the defendant. He has drawn attention of the Court to para 4 of the plaint, wherein, it is clear mentioning of the fact that appellant has created subtenancy and the entire business is being carried out by on Atish Kumar Jain. It is further pointed out that the defendant is old aged person i.e. more than 70 years. It is further pointed out that the statement of defendants DW-1/Kedar Singh particularly, paras 9, 19, 21 and 25 and the statement of defendant DW/2/Atish Kumar Jain particularly paras 7, 8 and 13 and also to the statement of the plaintiff to demonstrate the fact that the defendant was unable to point out anything when asked in cross examination regarding the business, surrounding localities persons who are working in the adjoining shops. He could not point out that whether there is any electric connection in the shop in question despite of the fact that he has admitted the fact that there is fan installed in the shop in question. He stated that he used to take electricity connection from his neighbor, but he is not aware the fact that who the neighbor is. It is further submitted that the factum of work being taken from the Atish Kumar Jain is admitted by the defendant. 8. It is argued that the provision of Section 12(1)(b) of Accommodation Act are required to be established from the circumstances available. No such documents can be produced before the Court that subtenancy is being created. It is to be ascertained to the factual circumstances. In the present case the factual circumstances clearly shows a subtenancy is created by the defendant because the defendant himself is unable to prove that he is carrying out the business in the premises in question. It is submitted that Atish Kumar Jain is involved in doing the business is being admitted in some paragraphs of the evidences by the defendant as well as by Atish Kumar Jain. In such circumstances, no illegality have been committed by both the Courts below. It is submitted that Atish Kumar Jain is involved in doing the business is being admitted in some paragraphs of the evidences by the defendant as well as by Atish Kumar Jain. In such circumstances, no illegality have been committed by both the Courts below. He has further drawn attention of this Court to para 14, 15 and 16 of the Appellate Court's judgment, wherein the Appellate Court has dealt with all the arguments and thereafter has affirmed the findings given by the learned trial Court. In such circumstances, no interference is called for in the present second appeal. 9. Counsel appearing for the respondent has relied upon the judgment passed in the case of Municipal Council Dhar Vs. Abid Hussain reported in 2020 (3) M.P.L.J. 391, wherein the scope of Section 100 has been considered and it is held that the scope of interference by High Court is very limited when there are concurrent findings recorded by the Courts below. He further relied in the case of Sultan Singh and Ors. Vs. Hakim Singh and another reported in 2020 (3) MPLJ 374, wherein the scope of interference of Section 100 of CPC has been considered. 10. Heard learned counsel for the parties and perused the records. 11. From perusal of the records it is seen that apart from the admitted position that the concurrent findings by both Courts are being recorded against the appellant and decree of 12(1)(b) of Accommodation Act is being passed in favour of plaintiff directing the appellant to handover the vacant possession of the property to the plaintiff. The appellant has tried to establish the case that the ground of 12(1)(b) of Accommodation Act is not being categorically established by the plaintiff. The defendant has clearly given the evidence to the effect that he is carrying out the business in the premises in question. But, from the perusal of the record It is seen from the statement of defendant that he himself is unable to point out the fact that what kind of business is carried out by him and who are the neighbors of the shop and whether any electric connection is being established in the premises or not and if not, then, how the electricity is being used in the premises. Such questions are material questions which are required to be answered by the defendant in affirmative to establish the fact that business is being carried out by him. In absence of the answers to the aforesaid questions in the evidences which clearly goes to show that the defendant is unaware where about of the shop which clearly goes to show that the sub-tenancy has been created in the premises and on the contrary the statement of Atish Kumar Jain is clearly stated that at some point of time he is helping the appellant in carrying out the business by doing palledari. Atish Kumar Jain is well aware whereabout of the business being carried out by the defendant. The law with respect to 12(1)(f) is well settled to the extent that Section 12(1)(f) is also be established, if there is no direct evidence available on record, then the aforesaid can be established by the circumstances available on record. In the present case, the learned trial Court has found from the evidence available on record it is clearly established the ground of 12(1)(f) is made out for granting eviction decree in favour of the plaintiff and accordingly, the decree of Section 12(1)(f) of Accommodation Act is being passed by the learned trial Court and the same is being affirmed by the appellate Court after discussing the entire evidence available on record, specifically para 14 and 16 of Appellate Court's judgment which clearly reflects that all the grounds which have been taken by the appellant are being dealt with by the Appellate Court also. 12. As far as interference in the second appeal is concerned, the scope of interference is very limited. A very strong case is required to establish by the appellant. The second appeal can only be admitted on substantial questions of law. In the present case, after going through the entire material available on record, no substantial question of law although framed, but could not be established by the appellant. 13. Hon'ble Supreme Court in the case of Municipal council (Supra), following the judgment rendered by Hon'ble Supreme Court in the case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gurjar, reported in (1999) 3 SCC 722 has held as under: "5. 13. Hon'ble Supreme Court in the case of Municipal council (Supra), following the judgment rendered by Hon'ble Supreme Court in the case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gurjar, reported in (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 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 had 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 tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence. 6. If the question of law termed as 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 facts of the case would not be termed to be a substantial question of Jaw. 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 substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entire 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 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 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 procedure requiring interference in second appeal. This Court in Reserve Bank of India & Anr. v. Ramakrishan Govind Morey, AIR 1976 SC 830 held that whether trial court should not have exercised its jurisdiction differently is not a question of law justifying interference." 14. In the case of Laxmidevamma Vs. Ranganath, reported in (2015) 4 SCC 264 , again the Apex Court has held as under:- "15. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation 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 plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., 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." 15. Considering the limited scope of interference under Section 100 of CPC against the concurrent findings of the facts, this Court refrains from admitting the second appeal as no substantial question of law is made out. 16. As far as, alternative prayer made by the appellant is concerned, this Court deems it appropriate to grant six months time to handover the vacant possession of the shop in question to plaintiff from today. 16. As far as, alternative prayer made by the appellant is concerned, this Court deems it appropriate to grant six months time to handover the vacant possession of the shop in question to plaintiff from today. In case, an undertaking is being filed by the appellant before the trial Court within fifteen working days to the aforesaid effect that he will handover the vacant possession of the premises in question to the plaintiffs on or before 31st August 2021. In case the undertaking is not filed, then the vacant possession be handed over immediately or to be taken up forcefully. 17. Accordingly, the appeal sans merits and is hereby dismissed.