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2022 DIGILAW 1913 (RAJ)

Chhotu Ram Saini v. Balvant Singh Shekhawat

2022-06-30

SUDESH BANSAL

body2022
JUDGMENT 1. Heard learned counsel for appellant-objector. 2. Appellant-objector has preferred this second appeal against the judgment and decree dated 28.5.2022 passed in Civil Appeal (CIS) No.55/2017 by the Court of Additional District Judge No.1, Sikar, affirming the judgment dated 06.12.2017 passed in Objection Application No.20/2011 (CIS No.322/2014) by the Court of Civil Judge, Sikar, District Sikar whereby and whereunder the objection application filed under Order 21 Rule 97 CPC against the decree dated 25.08.1980 passed in Civil Suit No.07/73, was dismissed. 3. It appears from record that one Shri. Girdhari Singh, who is predecessor of respondents Nos. 1 to 4 instituted a civil suit No.07/1973 for redemption of mortgage and possession against one Smt. Indira Devi Jain in relation to three shops. The suit was decreed vide judgment dated 25.08.1980. The appellant-objector claimed that out of three shops, one shop in question was in tenancy of his father late Sh.Salag Ram from the plaintiff-decree holder Girdhari Singh orally since 1980 @ Rs.170/- per month but due to the court stay, neither rent deed was executed nor receipt of rent was issued. Appellant-objector claimed that his father was running a tea stall in the shop and the objector also helped in the business. The objector claimed that after death of his father, now he is tenant of plaintiff-decree holder in the shop in question. When the plaintiff-decree holder sought to dispossess the objector in execution of the decree dated 25.08.1980, the objector submitted objections under Order 22 Rule 97 CPC alleging inter alia that he is not bound by the decree and cannot be evicted from his rented shop. 4. On the other hand, the plaintiff-decree holder denied the tenancy of objector and his father in the shop in question and one Madan Lal was said to be tenant. In the decree dated 25.08.1980, it was decided that the defendant-judgment debtor had let out the shops to tenants and would hand over the possession of three shops to the plaintiff-decree holder. The decree dated 25.08.1980 was amended vide order dated 05.09.1985 (Exhibit 4A and Exhibit 5A). In the amendment order dated 05.08.1985, it was mentioned that all three shops were let out by Smt. Indira Devi to defendants of that suit. 5. The decree dated 25.08.1980 was amended vide order dated 05.09.1985 (Exhibit 4A and Exhibit 5A). In the amendment order dated 05.08.1985, it was mentioned that all three shops were let out by Smt. Indira Devi to defendants of that suit. 5. The principle issue which was raised in the objection was that as to whether the plaintiff-decree holder late Girdhari Singh let out the shop to objector's father orally in the year 1980? 6. The objector was given opportunity to adduced his evidence. He adduced his oral and documentary evidence. On the basis of documents (Exhibit A1 and Exhibit A2)- rent note, it was found that the shop in question was let out to one Madan Lal through rent note dated 28.11.1978. On appreciation of the decree dated 25.08.1980 and the amended order dated 05.09.1985, it was held that till 1985 the shops were not in possession of the plaintiff decree holder Girdhari Singh, therefore, it was observed that the claim of objector that plaintiff-decree holder let out the shop to his father in the year 1980, is not believable. Other documentary evidence was also taken into consideration. The appellant-objector produced certain bills of electricity consumption in the name of his brother Sanwar Mal, however, considering the period of electricity bills, the objector's case to establish the oral tenancy of his father in the shop in question, was not found proved. The bills of water consumption, PHED and telephone department for the year 1991 were said to be in the name of objector. The objector could not explain in what capacity he obtained the water and telephone connection. The explanation given by the appellant-objector that the electricity and telephone connection were taken with the consent of shop owner, was found preposterous and baseless. The oral evidence adduced by objector was considered but on appreciation of his evidence as a whole, a finding recorded that the objector remained failed to prove his oral tenancy in the shop in question since 1980. The possession of objector was found as trespasser, in violation to the decree sought to be executed. Accordingly, the objections were dismissed on merits vide order dated 06.12.2017. 7. The order dated 06.12.2017 was challenged by way of filing appeal, the appellate court re-heard and re-considered the objections on merits. The possession of objector was found as trespasser, in violation to the decree sought to be executed. Accordingly, the objections were dismissed on merits vide order dated 06.12.2017. 7. The order dated 06.12.2017 was challenged by way of filing appeal, the appellate court re-heard and re-considered the objections on merits. After re-appreciation of evidence on record, the appellate court concurred with the fact finding that the objector is not tenant in the shop in question. 8. On perusal of fact findings recorded by both courts below on the objections of the appellant-objector, it is clear that the objection petition has been considered on merits and appellant- objector was given full opportunity to adduce evidence. The two courts below, on appreciation/re-appreciation of evidence adduced by the appellant-objector, have concluded that he could not establish that the shop in question was let out to his father orally in the year 1980 by the plaintiff-decree holder. On the contrary, the possession of objector was found as trespasser in violation to the decree dated 25.08.1980. 9. Learned counsel for appellant-objector could not point out any perversity in the fact findings and only stressed that on the basis of electricity, water and telephone bills, his possession over the shop in question is proved. Counsel for appellant-objector could not point out any admissible peace of evidence to show tenancy of his father in the shop in question. 10. The Honb'le Supreme Court in case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [ (1999) 3 SCC 722 ] and catena of other judgments passed in case of Pakeerappa Rai v. Seethamma Hengsu & Ors., [ (2001) 9 SCC 521 ], Thulasidhara & Anr. v. Narayanappa & Ors., [ (2019) 6 SCC 409 ], Bholaram v. Ameerchand, [ (1981) 2 SCC 414 ], Ishwar Das Jain v. Sohan Lal, [ (2000) 1 SCC 434 ], State of Madhya Pradesh v. Sabal Singh & Ors., [ (2019) 10 SCC 595 ] and D. Doddanarayan Reddy and Ors. v. C. Jayarama Reddy and Ors. Reported in [ (2020) 4 SCC 659 ] has categorically held that at the stage of second appeal, fact findings recorded by two Courts below, based on appreciation of evidence, should be honoured and must not be interfered with unless and until there is some perversity, illegality or jurisdictional error which leads manifest injustice. v. C. Jayarama Reddy and Ors. Reported in [ (2020) 4 SCC 659 ] has categorically held that at the stage of second appeal, fact findings recorded by two Courts below, based on appreciation of evidence, should be honoured and must not be interfered with unless and until there is some perversity, illegality or jurisdictional error which leads manifest injustice. Once findings of fact recorded by two Courts below are justified and based on due appreciation of evidence, re-appreciation of evidence at the stage of second appeal in order to draw a different conclusion is not warranted. The scope of second appeal is confined to examine substantial question of law, which are sine qua non to exercise powers under Section 100 of CPC. 11. In present case, on appreciation of findings of fact, which suffers from no perversity, no question of law arises, in absence of any substantial question of law, this second appeal is not liable to be entertained and same is hereby dismissed. 12. Any other pending application(s), if any, also stand(s) disposed of. 13. There is no order as to costs.