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2022 DIGILAW 325 (TRI)

Deshapremik Roy v. Amar Ranjan Sarkar

2022-08-05

T.AMARNATH GOUD

body2022
JUDGMENT 1. This is an appeal filed under Section 100 of the Code of Civil Procedure, 1908 against the judgment dated 09.09.2019 passed by the learned District Judge, Gomati District, Udaipur in Title Appeal No.05 of 2018 upholding the judgment passed by the learned Civil Judge (Junior Division), Gomati District, Udaipur dated 07.06.2018 in Title Suit No.02 of 2000. 2. The fact of the case is brief are that one Lt. Nishi Kanta Sarkar, the father of the respondent herein was the possessor of the suit land from 1955 and he made some construction therein. After his death, the respondent started possessing the same and in the year 1984, the appellant entered into the possession of the suit premises based on a registered lease deed for a period of two years, where he started a sweet-meet shop which was renewed in the year 1989 for another two years. After the expiry of the said lease period, it was further extended up to 08.08.1991, for two years. Thereafter on expiry of the lease period, the appellant continued the possession of the said premises ignoring the request of the respondent to execute a fresh lease deed for the same. The same premises required some maintenance and the respondent requested him to vacate the premises for the purpose of repairing, but of no result. So, after serving a legal notice to vacate the said premises, and to pay the unpaid rent, he filed the suit for eviction against the appellant. 3. After receiving the summons from the learned Court, the appellant appeared therein and contested the suit by filing a written statement denying all the averments made in the plaint. It was the contention of the appellant that he has been running the said sweet-meet shop on C.S. Plot No.1528 as a tenant of Radha Ballav Sutradhar since Aswin 1400 BS. The respondent never possessed any portion of the said C.S. Plot No.1528 and never made any construction on that land. It was further claimed by the appellant that construction made within the C.S. Plot No.1528 was of Shri Radha Ballav Sutradhar and from 1391 BS to 1400 BS, he was a tenant of the respondent in a temporary shed constructed by him to the eastern side of C.S. Plot No.1529. It was further claimed by the appellant that construction made within the C.S. Plot No.1528 was of Shri Radha Ballav Sutradhar and from 1391 BS to 1400 BS, he was a tenant of the respondent in a temporary shed constructed by him to the eastern side of C.S. Plot No.1529. The said plot is lying to the southern boundary of the C.S. Plot No.1528 and during that period of time, some registered instruments were created between the appellant and the respondent. He further denied having knowledge regarding the contents of these registered instruments. He further claimed that in the middle part of 1399 B.S., the respondent requested him to vacate the 'dokan' shed. Accordingly, in the last part of 1400 B.S. he vacated the said premises and handed over the possession to the respondent. Thereafter, he entered into possession of the premises on 12.09.1993 as a tenant of Radha Bhallav Sutradhar and started running his business therein. He further stated that the boundary of the suit land mentioned in the plaint was not correct and prayed for disposal of the suit. 4. Based on the evidence of the parties, the learned Court below after completion of the trial, passed the judgment on 07.06.2018. The Court below decreed the suit directing the respondent therein to handover the possession of the suit land to the appellant and also to pay rent at the rate of Rs.300 per month along with damaged amounting to Rs.29 per day from the month of Jaisthya 1406 till vacation of the suit premises. 5. The appellant felt seriously aggrieved by the said judgment of the Trial Court below and challenged the same by filing an appeal in the Court of District Judge, Gomati District, Udaipur, Tripura which was numbered as T.A.05 of 2018. The learned Appellate Court below, after hearing the appeal passed the impugned judgment on 09.09.2019 dismissing the appeal and confirming the judgment of the learned Trial Court below. 6. Aggrieved thereby with the impugned judgment, passed by the learned Appellate Court below, the appellant filed this instant second appeal before this Court. 7. This instant second appeal was admitted on 26.08.2020 on the following substantial question of law:- 'i. Whether the plaintiff has any right to seek eviction of the defendants without having any title over the suit land? ii. Whether the findings of both the Courts below are perverse? iii. 7. This instant second appeal was admitted on 26.08.2020 on the following substantial question of law:- 'i. Whether the plaintiff has any right to seek eviction of the defendants without having any title over the suit land? ii. Whether the findings of both the Courts below are perverse? iii. Any other substantial question which may arise at the time of hearing of this appeal.' 8. Heard Mr. S.M. Chakraborty, learned Sr. counsel assisted by Mrs. A. Pal, learned counsel appearing for the appellant as well as Mr. D. Bhattacharjee, learned Sr. counsel assisted by Mr. S. Saha, learned counsel appearing for the respondent. 9. Mr. S.M. Chakraborty, learned Sr. counsel appearing for the appellant herein argued that Courts below miserably failed to appreciate the pleaded case of the appellant and the evidence on record. Learned Sr. counsel further submitted that all the Courts below misread the record. The Courts below failed to appreciate that they were under obligation to appreciate both the fact and law involved in the case. The Courts below while passing the impugned order miserably failed to appreciate that the land measuring 0.023 acre covered by the C.S. Plot No.1528 of khatian No.616 on which the shop premises of the respondent is situated was the land under the ownership and exclusive possession of Smt. Laxmi Rani Sutradhar, wife of Late Radha Ballav Sutradhar. The respondent had no claim of right or title over the said land. So the learned Courts below have no scope to pass the eviction decree in favour of the respondent. The learned Court below miserably failed to appreciate the contents of Exbt-13 i.e. the judgment of this Court dated 12.08.2016 passed analogously in RSA No.76 and 77 of 2017, wherein, it was specifically held in para-35 and 36 that the original plaintiff of that suit, viz, Radha Ballav Sutradhar was able to prove his hostile possession over his shop which was standing on 0.023 acres of land and not on the entire land of 0.052 acres on which the earlier decree was passed. Accordingly, partly allowing that appeal and after that judgment of this Court, both the Courts below were left with no authority to arrive at the third finding avoiding the said judgment. 10. Mr. D. Bhattacharjee, learned Sr. counsel countering the argument of the learned Sr. Accordingly, partly allowing that appeal and after that judgment of this Court, both the Courts below were left with no authority to arrive at the third finding avoiding the said judgment. 10. Mr. D. Bhattacharjee, learned Sr. counsel countering the argument of the learned Sr. counsel appearing for the appellant pointed out the findings of the learned first appellate Court and held that the judgment and order passed on 09.09.2019 is just and proper and needs no interference. Further, in support of his contention, Mr. Bhattacharjee, learned Sr. counsel pressed into service Para-25 of the Apex Court Judgment dated 02.14.2020 passed in C. Doddanarayana Reddy(Dead) by Legal Representative and ors. Vs. C. Jayarama Reddy (Dead) by Legal Representatives and ors., reported in (2020) 4 SCC 659 which is reproduced herein-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 reported as Karnataka Board of Wakf v. Anjuman-E- Ismail Madris-Un-Niswan, 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. 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 8 (1999) 6 SCC 343 jurisdiction under Section 100 of 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 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 reappreciate the evidence just to re- place the findings of the lower courts. ... Even as- assuming that another view is possible on a reappreciation 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 Secy., Taliparamba Education Society v. Moothedath Mallisseri Illath M.N. , this Court held: (SCC p. 486, para 5) '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.' Mr. Bhattacharjee, learned Sr. counsel also referred to para-10 of the judgment of the Apex Court dated 07.16.2019 passed in Chaman Lal (Dead) Through Legal Representative Vs. Kamlawati (Dead) Through Legal Representatives reported in (2020) 11 SCC 693 which is reproduced herein-under:- '10. We are fortified in our aforesaid view by earlier judicial pronouncements. We may note that these judgments are in the context of the provisions for second appeal under Section 100 of the said Code as it existed prior to the amendment of 1976, which is almost pari material to the existing provision which applies to Punjab[as noticed in Pankajakshi in para-24]. Per se construction of documents (unless documents of title) to prove a question of fact do not involve an issue of law unless it can be shown that the material evidence contained in that was misunderstood by the Court of fact. In the facts of the present case we are, in fact, dealing with a document of title i.e. the gift deed. Thus, there can be little doubt that if the translation of the document itself is not correctly done, an aspect which was addressed to by the High Court by getting the translation done, which was accepted, then the correct translation would have to be re-construed. It is the principle, which was recognized in Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., while observing in Para-2 as under: (Chunilal Vs. It is the principle, which was recognized in Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., while observing in Para-2 as under: (Chunilal Vs. Mehta case, AIR p.1316) '2...... Indeed it is well settled that the construction of a document of title or of a document which is the foundation of the rights of parties necessarily raises a question of law.' 11. Heard both sides and perused the evidence on record. 12. At this stage, this Court cannot go into the point of the factual issue in the second appeal. The present appeal is filed against the concurrent findings. It is not necessary for the plaintiff to get his right, title and interest proved before this Court since it is an suit for eviction of tenant. It is not a suit for declaration of title. No argument is advanced on legal issues by the appellant except on the facts. Moreover, the appellant- counsel prayed to get the property surveyed by a Commissioner to find out the boundaries. It is not for this Court to consider the said argument at the stage of second appeal. The appellant has not made out a case for interference with the orders of the Courts below. 13. Hence the instant second appeal filed by the defendant-appellant is dismissed confirming the orders of the Courts below dated 09.09.2019 and 07.06.2018 passed in Title Appeal No.05 of 2018 and Title Suit No.02 of 2000. 14. Consequently, pending application(s), if any, also stands closed.