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2022 DIGILAW 157 (JK)

Tarsem Lal v. Sudershana Sharma

2022-04-11

RAJNESH OSWAL

body2022
JUDGMENT : Rajnesh Oswal, J. This is a Civil Second Appeal against the judgment and decree dated 30.12.2017 passed by the learned Principal District Judge, Reasi (hereinafter to be referred as the appellate court) in the Civil First Appeal titled “Madan Lal (Dead) through legal representatives versus Sudershna Sharma (Dead) through legal representatives” whereby the Appellate Court has upheld the judgment and decree of eviction dated 07.09.2013 passed by the Sub-Judge, Katra (hereinafter to be referred as the learned trial court) in the civil suit, titled, “Sudershana Sharma and others vs. Madan Lal”. 2. As the instant appeal is the Civil Second Appeal, the appellant has proposed the following substantial questions of law, for consideration of this Court:- “(A) Whether appellate court was required to direct the trial court to frame the following additional issues in light of its having permitted to amend the written statement? (a) Whether the plaintiff reasonably requires the suit shop for his own use and her son namely, Himanshu Sharma’s use keeping in view of subsequent construction of guest house at Katra by plaintiff No. 1 who was herself a Govt. employee unable to personally run the business? OPP (b) Whether the defendant No. 1 (tenant) would suffer greater hardship in the event of being evicted than the hardship suffered by which the plaintiff No. 2/land lord would suffer in the event eviction being denied? OPP. (B) Whether the ratio of Apex Court judgment in Partap Raj Tanwani and anr. Vs. Uttam Chand and anr. reported in (2004) 8 SCC 490 has been wrongly appreciated by the appellate Court on the ground of subsequent event of construction of guest house had materially changed the ground of relief. (C) Whether appellate Court having not taken note of the observations made in Gaya Parshad vs. Pradeep Srivastava reported in (2001) 2 SCC 604 that subsequent events which overshadow the genuineness of land lords are not to be ignored. (D) Whether the observation of trial court’s claim of lean periods of pilgrimage of Mata Vaishno Devi Shrine reflects that the poor state of mind has not gone unobserved by appellate Court?” 3. Mr. (D) Whether the observation of trial court’s claim of lean periods of pilgrimage of Mata Vaishno Devi Shrine reflects that the poor state of mind has not gone unobserved by appellate Court?” 3. Mr. Kuldeep Singh Parihar, learned counsel for the appellant argued only on the issue that the learned trial court has erred in not framing an additional issue with regard to subsequent events those were pleaded by the appellant by way of amendment of written statement and he further argued that the necessity of the respondent Nos. 1-3 came to an end due to happening of events during the pendency of the suit. 4. Per contra, Mr. Rohit Kohli, learned counsel for the respondent Nos. 1-3 vehemently argued that the predecessor-in-interest of the appellant was permitted to amend the written statement and bring on record the subsequent events and thereafter the predecessor-in-interest of appellant led additional evidence and also respondent Nos. 1-3 led evidence in rebuttal thereof and both the learned trial court as well as the appellate court have considered the subsequent events while passing their respective judgments. He further submitted that there are concurrent findings of the facts by both the courts and no substantial question of law is involved in the present appeal, as such, this appeal is not maintainable. 5. Heard and perused the record. 6. The facts necessary for the consideration of the present appeal are that the predecessor-in-interest of the respondents 1-3 i.e. Sudershan Sharma had initially filed a suit for eviction against the predecessor-in-interest of the appellant as well as respondent Nos. 4 to 12, namely, Madan Lal in the year 1998, for his eviction from the shop situated at Katra on the ground that the suit shop was required by him for augmenting his income as he had retired from the Government service and further for the purpose of settlement of his son i.e. respondent No. 2 herein. The suit shop was taken on rent by the father of the predecessor-in-interest of the appellant in the year 1976 i.e. the grandfather of the appellant herein. 7. The suit shop was taken on rent by the father of the predecessor-in-interest of the appellant in the year 1976 i.e. the grandfather of the appellant herein. 7. The predecessor-in-interest of appellant filed the written statement in which he denied the necessity of the deceased plaintiff and further pleaded that the son of the plaintiff therein i.e. the respondent No. 2 herein was studying in Engineering College, as such, there can be no question of settling his son in the suit shop and on the basis of the pleadings of the parties, following issues were framed by the learned trial court. “1. Whether the plaintiff reasonably requires the suit shop for his own and his son namely Himanshu Sharma’s personal necessity? OPP. 2. Whether the requirement of Plaintiff is comparatively greater than that of the Defendant? OPP 3. Whether the requirement of plaintiff can be met by partial eviction of the defendant from the part of the suit shop? OPP 4. Relief? OPP” 8. During the pendency of the said suit, the plaintiff expired and his legal representatives i.e. respondent Nos. 1-3 were brought on record. During the pendency of the said suit, the predecessor-in-interest of appellant was allowed to amend the written statement and he amended Para-8 of his written statement by pleading that the plaintiffs therein do not require the suit shop for personal necessity of plaintiff-Himanshu Sharma- respondent No. 2 herein, as the plaintiff No. 1 and 2 i.e. the respondent Nos. 1 and 2 herein have constructed a hotel and shops in land measuring 2 kanal 2 marlas bearing Khasra No. 119 situated in Katra under the decree passed by the Sub-Judge on 25.01.2006 in case titled “Sudershna Sharma Versus Rakesh Kumar and others” and the possession of the land was taken by the plaintiffs. It was also pleaded that the plaintiffs/respondent Nos. 1 to 3 have constructed hotel and shops in this land and the plaintiff Nos. 1 and 2 i.e. respondent Nos. 1 and 2 herein will have sufficient earnings from the hotel and shops, so the contesting respondents do not require the suit shop in view of the latest developments and further that the respondent No. 2 can start his business in the said newly constructed shops and hotel. 9. 1 and 2 i.e. respondent Nos. 1 and 2 herein will have sufficient earnings from the hotel and shops, so the contesting respondents do not require the suit shop in view of the latest developments and further that the respondent No. 2 can start his business in the said newly constructed shops and hotel. 9. The respondents 1-3/plaintiffs filed replica to the para-8 of the amended written statement, denied the contention of the deceased defendant that the requirement of the plaintiffs have extinguished and it was also submitted that the land devolved upon the respondent No. 1 by way of succession, after the demise of her father and being the owner of the same, she instituted the suit against the occupants of the land that came to be decreed in her favour. It was also stated that the plaintiff No. 1 i.e. respondent No. 1 has constructed a guest house on the property exclusively owned and possessed by her and respondent No. 2 has no concern with the same and it was also submitted that the respondent No. 2 was without any job. 10. The predecessor-in-interest of respondent Nos. 1 to 3 besides examining himself, examined PWs Dev Raj Mengi, R. K Madan, Raj Singh, Ram Sawrop and Mohd. Farooq in support of plaint, whereas the predecessor-in-interest of appellant initially examined himself, Rishi Ram, Manohar Lal, Bodh Raj, Prem Nath Gupta and Sham Lal and after the amendment of the written statement was allowed and replica was filed, the statement of the deceased defendant was recorded again on 30.07.2012. The predecessor-in-interest of appellant also examined witnesses, namely, Ashok Kumar on 08.01.2013 and Executive Officer Municipality-Ravi Kumar and the evidence of the deceased defendant was closed on 25.03.2013 and thereafter rebuttal evidence was led by respondent Nos. 1 to 3 and they examined respondent No. 2 and one Jatinder Kumar in support of their case. 11. After considering the evidence of the parties, the learned trial court decreed the suit by returning a finding that the need for permanent settlement of the respondent No. 2 for the business in the suit shop is reasonable and genuine and the respondent No. 2 is unemployed and so far as the guest house is concerned, it is the property received by his mother i.e. the respondent No. 1. The issue of comparative necessity was also decided in favour of the plaintiffs. 12. The issue of comparative necessity was also decided in favour of the plaintiffs. 12. The said judgment was assailed by the deceased defendant i.e. predecessors-in-interest of the appellant and respondent No. 4 to 12 on the ground that the respondent Nos. 1 to 3 did not prove issue No. 1 with cogent evidence and further that the suit has been decreed on assumptions and presumptions. It was also urged that it was established before the trial court that the respondent No. 1 obtained another decree of land comprising khasra No. 119 situated at Katra and constructed her hotel in that land and she had no intention to run the business of shawls. It was one of the grounds of the predecessor-in-interest of appellant that issues were not framed properly. The learned first appellant court vide judgment and decree dated 30.12.2017 dismissed the appeal filed by the appellant therein upholding the judgment and decree of the trial court. 13. As the instant appeal is civil second appeal and first of all it is to be seen whether the substantial questions of law as pleaded by the appellant or otherwise arise or not. Hon’ble Apex Court in Nazir Mohamed Versus J. Kamala and Others reported in 2020 SCC OnLine 676 after considering its various earlier pronouncements, has held as under: “32. To be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way.” 14. Now this Court would examine the case of the appellant on the parameters laid down by Apex Court as mentioned above. The main contention of the appellant is that the learned trial court did not frame any issue with regard to the subsequent facts brought on record by amendment of the written statement. From the record, it is evident that after the amendment was allowed, the statement of the predecessor-in-interest of the appellant was recorded again and witnesses DW Ashok Kumar and DW Ravi Kumar were also examined and in rebuttal, the respondent Nos. 1-3 examined respondent No.2 and PW Jatinder. From the record, it is evident that after the amendment was allowed, the statement of the predecessor-in-interest of the appellant was recorded again and witnesses DW Ashok Kumar and DW Ravi Kumar were also examined and in rebuttal, the respondent Nos. 1-3 examined respondent No.2 and PW Jatinder. The perusal of the judgment of the trial court reveals that the learned trial court has considered not only the evidence recorded prior to amendment of written statement but also the evidence led after the amendment was allowed. After considering the whole of the evidence, the learned trial court came to the conclusion that the guest house is in the name of respondent No.1 and the other respondent Nos. 2-3 cannot lay any claim over the same. There is also positive finding with regard to the unemployment of the respondent No.2 on the basis of witnesses examined by the respondent Nos. 1-3. After considering whole of the evidence, the learned trial court has held that the requirement of the suit shop for the settlement of the respondent No.2 is bona fide and this finding cannot be termed as perverse. The learned trial court as such has considered the effect of subsequent events upon the personal requirement of the suit shop by the respondent Nos. 1- 3 for respondent No. 2. 15. Now coming to the judgment of the Appellate court, this Court finds that the learned appellate court framed two issues for its consideration and they are reproduced as under: “1. Whether the finding returned by the trial court while deciding the issue No. 1 & 2 suffers from perversity? 2. Whether on account of subsequent event the personal requirement of the plaintiff has eclipsed but the trial court failed to appreciate the same?” 16. The learned appellate court too has examined in detail the effect of subsequent events and has observed that there is no evidence on record to prove that respondent No.2 has any right, title or interest in the land over which guest house has been constructed as the appellant has not led any evidence to that effect and rather the deceased defendant categorically stated that he did not see respondent No.2 sitting in the hotel. No doubt the rights of the parties as they exist on the date of institution of suit are required to be determined by the court but nonetheless the courts can take the cognisance of subsequent events having material impact upon the rights of the parties to a relief sought for in the suit. In Pratap Rai Tanwani v. Uttam Chand, reported in (2004) 8 SCC 490 , the Apex Court has held as under: “7. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale after passing through all the previous levels of the litigation merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period. 8. We cannot forget that while considering the bona fides of the need of the landlord the crucial date is the date of the petition. In Ramesh Kumar v. Kesho Ram [1992 Supp (2) SCC 623] a two-Judge Bench of this Court (M.N. Venkatachalia, J., as he then was and N.M. Kasliwal, J.) pointed out that the normal rule is that rights and obligations of the parties are to be determined as they were when the lis commenced and the only exception is that the court is not precluded from moulding the reliefs appropriately in consideration of subsequent events provided such events had an impact on those rights and obligations. What the learned Chief Justice observed therein is this: (SCC pp. 626-27, para 6) “6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. What the learned Chief Justice observed therein is this: (SCC pp. 626-27, para 6) “6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a ‘cautious cognizance’ of the subsequent changes of fact and law to mould the relief.” 10. The judicial tardiness, for which unfortunately our system has acquired notoriety, causes the lis to creep through the line for long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval many events are bound to take place which might happen in relation to the parties as well as the subject-matter of the lis. If the cause of action is to be submerged in such subsequent events on account of the malady of the system, it shatters the confidence of the litigant, despite the impairment already caused.” 17. So far as the instant case is concerned, both the courts have not only considered the pleadings with regard to the subsequent events but also the evidence led by the parties on the said facts. Now it is to be seen as to whether the judgment and decree of the trial court can be set aside only because of non-framing of issues with respect to subsequent events particularly when the parties have led the evidence on a particular fact and the said evidence has been appreciated by both the trial as well as appellate court. In Nedunuri Kameswaramma v. Sampati Subba Rao, reported in AIR 1963 SC 884 , Apex Court has observed as under: “5. On the first point, we do not see how the suit could be ordered to be dismissed, for, on the facts of the case, a remit was clearly indicated. The appellant had already pleaded that this was jeroyti land, in which a patta in favour of her predecessors existed, and had based the suit on a kadapa, which showed a sub-tenancy. The appellant had already pleaded that this was jeroyti land, in which a patta in favour of her predecessors existed, and had based the suit on a kadapa, which showed a sub-tenancy. It was the respondent who had pleaded that this was a Dharmila inam and not jeroyti land, and that he was in possession of the kudiwaram rights through his predecessors for over a hundred years, and had become an occupancy tenant. Though the appellant had not mentioned a Karnikam service inam, parties well understood that the two cases opposed to each other were of Dharmila Sarvadumbala inam as against a Karnikam service inam. The evidence which has been led in the case clearly showed that the respondent attempted to prove that this was a Dharmila inam and to refute that this was a Karnikam service inam. No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion. Neither party claimed before us that it had any further evidence to offer. We, therefore, proceed to consider the central point in the case, to which we have amply referred already.” 18. As such, this Court is of the opinion that mere non framing of an issue is immaterial and can have no bearing upon the merits of the suit, when the parties went through the trial knowing their respective contentions and leading evidence on the same and more so when the evidence has been appreciated by the Courts notwithstanding non framing of issues. 19. Further both the courts have come to the conclusion that the comparative necessity of the respondent Nos. 1-3 is much more than that of the predecessor-in-interest of appellant. It has been established that respondent No.2 is un-employed and has no shop where he can run the business. 19. Further both the courts have come to the conclusion that the comparative necessity of the respondent Nos. 1-3 is much more than that of the predecessor-in-interest of appellant. It has been established that respondent No.2 is un-employed and has no shop where he can run the business. On the contrary, it has come in the statement of PWs Dev Raj and Raj Singh that the house of the defendant is in the commercial area. Defendant had admitted that his house exists on one kanal of land and witnesses of the respondent Nos. 1-3 have deposed that the defendant can construct the shop over there. Thus, the said finding too cannot be held to be perverse. Therefore, in the instant case, there are concurrent findings of the facts recorded by both the Courts with regard to the personal necessity of the respondent No.2 herein with regard to the suit shop and also with regard to the comparative necessity of the respondent No.2, after due appreciation of evidence led by the parties during trial. The concurrent findings of facts, as a rule are not required to be interfered in second appeal unless the same are perverse or not based upon material on record. In C. Doddanarayana Reddy v. C. Jayarama Reddy, (2020) 4 SCC 659 , Hon’ble Apex Court has held as under: “25. The question as to whether a substantial question of law arises, has been a subject-matter of interpretation by this Court. In the judgment in Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan [Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, (1999) 6 SCC 343 ], it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under : “12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record. 13. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record. 13. In Ramanuja Naidu v. V. Kanniah Naidu [ (1996) 3 SCC 392 ], this Court held : ‘It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of the Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did.’ 14. In Navaneethammal v. Arjuna Chetty (1996) 6 SCC 166 ], this Court held : ‘Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re-appreciate the evidence just to replace the findings of the lower courts. … Even assuming that another view is possible on a re-appreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.’ 15. And again in Taliparamba Education Society v. Moothedath Mallisseri Illath M.N. [ (1997) 4 SCC 484 ], this Court held : ‘5. … The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact, which is impermissible.” 20. Further, in K.N. Nagarajappa v. H. Narasimha Reddy, 2021 SCC OnLine SC 694, Hon’ble Apex Court has observed as under: “14. Undoubtedly, the jurisdiction which a High Court derives under Section 100 is based upon its framing of a substantial question of law. As a matter of law, it is axiomatic that the findings of the first appellate court are final. However, the rule that sans a substantial question of law, the High Courts cannot interfere with findings of the lower Court or concurrent findings of fact, is subject to two important caveats. As a matter of law, it is axiomatic that the findings of the first appellate court are final. However, the rule that sans a substantial question of law, the High Courts cannot interfere with findings of the lower Court or concurrent findings of fact, is subject to two important caveats. The first is that, if the findings of fact are palpably perverse or outrage the conscience of the court; in other words, it flies on the face of logic that given the facts on the record, interference would be justified. The other is where the findings of fact may call for examination and be upset, in the limited circumstances spelt out in Section 103 CPC.” 21. In view of what has been discussed above, this Court is of the considered opinion that no substantial question of law arises in the present appeal and questions of law as framed by the appellant in the memo of appeal, do not fall within the meaning of substantial question of law. Therefore, the present appeal is dismissed with costs. The judgment and decree dated 30.12.2017 passed by the learned Principal District Judge, Reasi upholding the judgment and decree dated 07.09.2013 passed by the Sub-Judge, Katra in the civil suit titled, “Sudershana Sharma and others vs. Madan Lal” is upheld. The records be sent back and decree sheet be prepared accordingly. 22. At this stage, learned counsel for the appellant submits that he intends to challenge the instant judgment and decree before the Hon’ble Apex Court, therefore, operation of instant judgment and decree may be kept in abeyance for some reasonable time. 23. In the interest of justice, 30 days time from today is granted to the appellant to avail appropriate remedy under law and for the said period of 30 days, the present judgment and decree is kept in abeyance.