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2022 DIGILAW 1931 (RAJ)

Mustak Mohd v. Haidar Ali S/o Shri Rahamtulla

2022-07-01

SUDESH BANSAL

body2022
JUDGMENT 1. Appellant-plaintiff (hereafter referred to ’plaintiffs’) has filed this second appeal under Section 100 of C.P.C, assailing the judgment and decree dated 16.03.2016 passed in civil first appeal No.03/2011 by Additional District and Session Judge Jhalawar, District Jhalawar affirming the judgment and decree dated 27.08.2008 passed in civil suit No.86/2002 (104/1996) by Additional Civil Judge (Sr.D.) Jhalawar whereby and whereunder the civil suit for rent and eviction in relation to the shop in question has been dismissed on merits, mainly on the ground that there is no relationship of landlord and tenant between the parties. 2. On perusal of the record, it appears that plaintiffs’ father and the defendant’s father are real brothers and plaintiffs came with a case that the suit shop was belonging to their father-Karimbux who let out the shop in question to defendant at the rate of Rs.15/- per month. The tenancy was alleged to be oral but no details, as to when the tenancy was commenced, were mentioned in the plaint. Plaintiffs have in vague manner pleaded that the defendant started to pay rent @ Rs.15/- per month to plaintiffs and have committed default in payment of rent from 01.07.1985. The suit for eviction was instituted on 29.10.1996 invoking provisions of the Rajasthan Premise (Control of Rent and Eviction Act), 1950 (hereafter referred to ’Act of 1950’), on the ground of default, material alternation and denial of title. 3. The defendant submitted written statement and contended that the suit shop is more than 100 years old and their possession is not in the capacity of tenant. The defendant categorically denied that plaintiffs’ father-Karimbux ever let out or gave possession of the shop to the defendant. The defendant categorically denied that he never paid any rent either @ Rs.15/-per month or at any other rate to plaintiffs and there is no relationship of landlord and tenant, hence the suit for eviction is not liable to succeed and deserves to be dismissed. 4. Learned trial court, on rival pleadings of both parties, framed issues. The principal issue, as to whether the relationship of landlord and tenant exists between the parties, was framed, apart from other issues on grounds of eviction as to default, material alternation and denial of title. 5. Both parties were allowed to lead their evidence. 4. Learned trial court, on rival pleadings of both parties, framed issues. The principal issue, as to whether the relationship of landlord and tenant exists between the parties, was framed, apart from other issues on grounds of eviction as to default, material alternation and denial of title. 5. Both parties were allowed to lead their evidence. On the basis of evidence the trial court vide judgment dated 27.08.2008 proceeded to decide the suit and the issue relating to relationship of landlord and tenant was taken as first issue. While deciding this issue, the trial court has recorded a fact finding that plaintiffs could not prove that the shop in question belongs to their father and their father let out the shop to the defendant. It was observed that plaintiffs’ father-Karimbux and defendant’s father-Rahamtulla are real brothers and the case of plaintiffs to let out the shop orally @ Rs.15/- per month was not found proved. The trial court observed that there is no rent note, no rent receipt or any other iota of evidence to conclude that the shop was let out to the defendant. Plaintiffs and their witnesses could not prove as to when the shop was let out. None of the witnesses stated that the rent was ever paid by defendant in their presence. Plaintiffs stated the oral tenancy on the basis of hearsay and their witnesses also deposed statements on the basis of hearsay evidence. 6. In counter, the defendant adduced evidence that the properties of the family were divided and the shop came in share of their father; they are in possession of the suit shops since more than 15-16 years independently. 7. On appreciation of pleadings and evidence of both parties, the trial court has found that there is no relationship of landlord and tenant between the parties, hence the eviction suit under the Act of 1950 is not liable to succeed and there is no requirement to consider other issues relating to grounds of eviction. Consequently, the suit was dismissed vide judgment and decree dated 27.08.2008. 8. Appellants assailed the judgment and decree of trial court by filing first appeal. The First Appellate Court re-heard and reconsider pleadings and evidence of both parties. On re-appreciation of material available on record, the appellate court concurred with the fact findings recorded by the trial court. Consequently, the suit was dismissed vide judgment and decree dated 27.08.2008. 8. Appellants assailed the judgment and decree of trial court by filing first appeal. The First Appellate Court re-heard and reconsider pleadings and evidence of both parties. On re-appreciation of material available on record, the appellate court concurred with the fact findings recorded by the trial court. The case of the plaintiffs that prior to let out the shop in question to defendant, their father let out the shop to one Shri Allanoor was also disbelieved in absence of any evidence. The first appellate court concurred with the fact finding that appellants have miserably failed to prove their status as landlord and the fact that their father ever let out the shop to the defendant. Thus, in absence of evidence to prove the relationship of landlord and tenant, the first appeal was dismissed vide judgment and decree dated 16.03.2016. Against the concurrent finding of fact, this second appeal has been preferred. 9. Heard learned counsel for appellants and perused impugned judgments and material available on record. 10. This Court finds that both courts have recorded fact finding on appreciation of evidence on record that plaintiffs are not landlord and failed to prove that their father-Karimbux let out the shop in question to the defendant. There is no evidence on record to prove that the shop was ever let out orally @ Rs.15/- per month to the defendant. It is not in dispute that plaintiffs’ father-Karimbux and defendant’s father Rahamtulla were real brothers and the defendant is in possession of the suit property since long. In absence of any evidence to show the oral tenancy, the defendant’s possession over the shop cannot be treated as tenant of plaintiffs. Plaintiff-Moinudeen in his cross-examination admitted that the suit shop is more than 100-150 near old and situated in the Haveli of which they do not have any document of ownership. Plaintiffs could not point out the specific period as to when the shop in question was let out. Plaintiffs have admitted that they do not have any rent receipt or any account maintaining the receipt of rent. The evidence of plaintiffs and their witnesses is hearsay evidence. It is needless to reiterate that plaintiffs have instituted the present suit alleging the relationship of landlord and tenant and it was for plaintiffs to prove the relationship. Plaintiffs have admitted that they do not have any rent receipt or any account maintaining the receipt of rent. The evidence of plaintiffs and their witnesses is hearsay evidence. It is needless to reiterate that plaintiffs have instituted the present suit alleging the relationship of landlord and tenant and it was for plaintiffs to prove the relationship. Both courts, in absence of plaintiffs’ evidence, have concurrently held that plaintiffs are not landlord and the factum of oral tenancy as alleged by plaintiffs is not proved. The fact findings recorded by both courts below are based on the appreciation/reappreciation of evidence and do not suffer from any perversity, jurisdictional error, misreading/non-reading of evidence. 11. It is a trite law that while exercising the powers by High Court under Section 100 CPC, re-appreciation of evidence for the purpose of drawing a different conclusion other than recorded by two courts of fact findings, is not permissible. The appellate court found the first appeal to be devoid of merits. Consequently the decree passed by the trial court was upheld by the appellate court. Counsel for defendant has not been able to prove his case or to point out any perversity or make out any substantial question of law in respect of the judgment and decree passed by the trial court as also the appellate court. The conclusion of the courts below are based on findings of fact. The Hon’ble Supreme Court in the case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar [ (1999)3 SCC 722 ] and catena of other judgments passed in case of Pakeerappa Rai Vs. Seethamma Hengsu & Ors., [ (2001)9 SCC 521 ], Thulasidhara & Anr. Vs. Narayanappa & Ors., [ (2019) 6 SCC 409 ], Bholaram Vs. Ameerchand, [ (1981)2 SCC 414 ], Ishwar Das Jain Vs. Sohan Lal, [ (2000)1 SCC 434 ] and State of Madhya Pradesh Vs. Sabal Singh & Ors., [ (2019)10 SCC 595 ], C. Doddanrayana Reddy and Ors. Vs. C. Jayarama Reddy and ors. [ (2020)4 SCC 659 ] has held that the concurrent findings of facts even if erroneous cannot be disturbed by the High Court in exercise of the powers under Section 100 CPC. This proposition is well established. Findings of fact based on appreciation of evidence are the province of the trial court and the first appellate court. 12. [ (2020)4 SCC 659 ] has held that the concurrent findings of facts even if erroneous cannot be disturbed by the High Court in exercise of the powers under Section 100 CPC. This proposition is well established. Findings of fact based on appreciation of evidence are the province of the trial court and the first appellate court. 12. With the aforesaid observation, the second appeal is bereft of merits and the same is hereby dismissed. 13. No order as to cost. 14. Record be sent back forthwith. 15. Stay application and any other pending application(s), if any, stand(s) disposed of.