[1].IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT
1 Usha Soni & ORS.versus LRs of Dev Kishan & ORS.S.B.CIVIL SECOND APPEAL No.151 OF20122.
Usha Soni & ORS.versus LRs of Dev Kishan & ORS.S.B.CIVIL SECOND APPEAL No.150 OF2012Civil Appeals under Section 100 CPC against the impugned judgment and decree dated 19th of April 2012 *** Date of Judgment: September 24, 2013 PRESENT HON'BLE Mr.JUSTICE P.K.LOHRA Reportable Mr.Alkesh Agarwal, for the appellants.
Mr.Vishal Sharma for the respondents.
BY THE COURT: The appellants-plaintiffs have preferred these two appeals against the impugned judgment and decree dated 19th of April 2012, which was rendered in [2].Civil Appeal Decree No.02/2010 and 03/2010 by the Addl.
District Judge, Merta (for short, ‘learned fiRs.appellate Court’) against the judgment and decree passed by the learned Addl.
Civil Judge (Jr.
Div.) Merta (for short, ‘learned trial Court’).which was passed in two cross suits filed by the rival parties bearing No.Civil Original Suit No.64 of 2001, and 100 of 2001 respectively.
The learned trial Court consolidated both the cross suits and by its judgment and decree dated 12th of January 2010 decreed the suit of the respondent for arrears of rent and eviction and dismissed the suit of the appellant for perpetual injunction.
The judgment aforesaid, which was rendered in both the civil suits, was assailed by the appellants before the learned fiRs.appellate Court by way of preferring two separate appeals and the learned appellate Court by the aforementioned impugned judgment and decree dismissed both of the appeals of the appellants.
Now, being aggrieved from the common judgment on both the appeals, the appellants have invoked jurisdiction of this Court under Section 100 CPC, by the aforesaid two appeals.
The facts apposite for the purpose of these [3].appeals are that appellants filed a civil suit against the respondents before the learned trial Court for the relief of perpetual injunction, inter-alia, on the ground that they are tenants of the respondents in the disputed premises and the respondents be restrained from evicting them from the disputed premises without following due process of law.
Responding to the said suit, the respondents-landlord filed counter claim inter- alia on the ground that the appellants have encroached over part of the premises which was not under their tenancy.
To combat the attempt of the appellants, the respondents also laid a civil suit against the appellants for arrears of rent and eviction from the disputed premises.
The learned trial Court consolidated both the suits and the rival parties were permitted to lead their evidence for substantiating their respective claiMs.In order to seek relief of perpetual injunction, the fiRs.appellant herself appeared in the witness box and examined 7 supporting witnesses.
Besides that, on behalf of appellants, documentary evidence was also adduced and in all 10 documents were exhibited.
For proving their case, the respondents also produced 8 witnesses and tendered 13 documents in evidence.
There was a serious dispute between the contesting [4].parties about the nature of tenancy and the dimensions of the rented premises.
The learned trial Court, on evaluation of evidence and other materials on record, recorded a categorical finding on Issue No.1 that appellant Usha Soni was let out a shop as a tenant by the respondent-plaintiff and no other premises were let out and remained under occupation of appellants for their residence.
Adverting to Issue No.4 & 5, the learned trial Court has found that the respondents have ably discharged their duties to prove both these issues and accordingly the learned trial Court recorded the finding that possession of the appellants on part of the premises is an illegal encroachment and accepted the counter claim.
Similarly, Issue Nos.6, 8, 9, 10 & 11 were also decided in favour of the respondents.
The Issue No.2 & 3 pertaining to termination of tenancy of the appellant and consequential relief of possession of the rented premises was decided by the learned trial Court in favour of the respondent.
Being disgruntled with the impugned judgment and decree, the appellants preferred two appeals before the learned fiRs.appellate Court and the learned fiRs.appellate Court, examining the matter [5].afresh, and evaluating the materials on record, fully concurred with the findings of the learned Court below and affirmed the judgment and decree passed by the learned trial Court.
The learned counsel for the appellants Mr.Alkesh Agarwal has strenuously urged that both the Courts below have seriously erred in appreciating the material evidence which was available on record.
Substantiating his contention in his behalf, learned counsel for the appellants would urge that the ocular and the documentary evidence, which was available on record, were neither looked into, nor discussed by both the learned Courts below, while rendering decision in favour of the respondents.
Learned counsel, Mr.Agarwal has submitted that the appellants have pleaded in clear and unequivocal terms that the rent deed which was executed by the appellant has been forged but despite the said plea the learned trial Court has not framed issue on this contentious plea and that has vitiated the judgment of the learned trial Court.
Assailing the judgment of the appellate Court on this count, learned counsel for the appellants has urged that even at the appellate stage despite persistence by [6].the appellants, the said question has not been adjudicated and therefore the matter requires consideration by this Court in exercise of jurisdiction under Section 100 CPC.
Mr.Alkesh Agarwal has vehemently argued that the tenancy of the appellants was by inheritance and after death of the husband of the fiRs.appellant, the appellants have become ipso facto tenant of the rented premises by virtue of inheritance.
Taking a dig at the new rent deed, which was allegedly executed by the fiRs.appellant after death of her husband, learned counsel for the appellants, would urge that the said instrument is of no consequence because a new tenancy cannot come into offing without terminating the earlier tenancy.
Learned counsel for the appellants Mr.Alkesh Agarwal has urged with full eloquence that both the learned Courts below have erred in interpreting the documents viz.
three rent deeds executed in favour of respondent Sita Devi and while construing the documents, the apparent over-writing in the rent deeds and the alterations therein have been overlooked by both the learned Courts below which is a very serious issue requiring interference by this Court after framing substantial question of law.
Laying stress on the documents Ex.5 [7].& 6, ration cards of the appellants of the same locality, the learned counsel for the appellants has contended that those were the vital piece of evidence for proving the case of the appellants for residential tenancy but to the utter dismay of the appellants both these documents were not properly construed by the learned Courts below.
Putting great emphasis on serious contradictions in the testimony of respondent Sita Devi, Mr.Alkesh Agarwal has urged that defacto possession of the part of the premises with the respondents and the allegation against the appellants for illegal encroachment is not in conformity with the version of Nisar in his statement.
Mr.Arawal while assailing the impugned judgments of both the Courts below, has argued that Commissioner’s report Ex.10 makes it clear that besides shop, the other part of the premises were also in possession of the appellants.
Countering the allegation of the respondents, learned counsel for the appellants would urge that the respondents have miserably failed to prove encroachment by the appellants on the disputed premises on 23rd of July 1998 and despite unavailability of material to this effect, the learned trial Court has recorded finding favourable to the respondents and while upholding the [8].said finding, the learned fiRs.appellate Court has also concurred with the same.
With these submissions, the learned counsel for the appellants would urge that the case in hand is an apt example of total misreading of evidence and misconstruing the documents which were available on record, and as such a substantial question of law is involved in the matter requiring adjudication by this Court.
In support of his contentions, the learned counsel for the appellants has placed reliance on the following verdicts: · Sardar Singh versus Prakash Singh (1987 RLW701(Raj.) · N.M.Ponniah Nadar versus Smt.
Kamalakshmi Ammal [(1989) 1 SCC64 · Krishna Kumar Khemka versus Grindlays Bank PLC & ORS.[(1990) 3 SCC669 · Ishwar Dass Jain (Dead) through LRs versus Sohan Lal (Dead) through LRs.[2000 (1) RLW80(SC)].· Vishnu Prakash & Anr.
versus Sheela Devi (Smt.) & ORS.[(2001) 4 SCC729 · M.B.Ramesh (D) by LRs.versus K.M.Veeraje Urs (D) by LRs & ORS.[2013 (2) WLC (SC) Civil 38].[9].E-converso.
Learned counsel for the respondents Mr.Vishal Sharma has urged that the issues raised by the learned counsel for the appellants hover around factual aspects of the matter and as such cannot be made subject matter of judicial scrutiny in a Second Appeal.
Emphasizing that both the Courts below have examined the facts of the case on the touchstone of materials available on record, learned counsel would urge that concurrent finding of facts calls for no interference in want of substantial question of law.
Mr.Sharma, learned counsel for the respondents, has argued that both the learned Courts below have recorded a categorical finding that the appellants failed to prove residential tenancy.
On appreciation of evidence, now it is not open for them to make out a new case sans the documentary evidence available on record.
Learned counsel for the respondents would urge that the version of fiRs.appellant about residential tenancy has not been supported by any other witness and cumulative reading of evidence of all these witnesses clearly falsifies her claim.
Placing reliance on testimony of PW2 Munnalal, PW8 Kansingh and other witnesses of the appellants, Mr.Vishal Sharma has [10].submitted that document Ex.D-5 coupled with the testimony of witnesses makes it crystal clear that store-room situated behind the shop of the appellants was earlier remained under the possession of Nishar and subsequently handed over to the respondents.
Therefore, learned counsel contends that encroachment on store-room by the appellant is clearly established and concurrent finding on this issue by both the Courts below cannot be termed as perveRs.and infirm in these circumstances.
Learned counsel for the respondents, while laying stress on Rent Deeds Ex.D-3 & D-4, has urged that the appellant having admitted execution of these instruments cannot be allowed to disown the recitals contained therein.
Mr.Sharma, while taking a dig at the plea of the fiRs.appellant that she was mentally ill at the time of execution of these deeds, urged with full vehemence that the burden of proving mental illness was on her which she has not discharged and therefore there remains no room of doubt about the text of both these rent deeds With these submissions, Mr.Sharma has urged that finding and conclusion of both the [11].Courts below is based on sound appreciation of evidence and therefore cannot be faulted.
Once again reiterating his arguments about tenancy of shop, Mr.Vishal Sharma has invited attention of this Court towards these rent deeds wherein it is mentioned with clarity and precision that premises let out to the appellant is a shop and no residential accommodation was part of the tenancy.
Learned counsel for the respondents placed reliance on these precedents: · Hari Singh versus Kanhaiya Lal (AIR1999SC3325 · Navaneethammal versus Arjuna Chetty (AIR1996SC3521 · Bhairab Chandra Nandan versus Ranadhir Chandra Dutta (AIR1988SC396 · Bholaram versus Ameerchand (AIR1981SC1209 I have heard learned counsel for the parties, perused both the impugned judgments and thoroughly scanned the record of learned trial Court as well as the appellate Court.
The fiRs.and the foremost question, which has cropped up in both these appeals, essentially rests [12].on the type or nature of tenancy.
Joining the issue before learned trial Court, two cross suits were laid by the rival parties and the respondent also made endeavour to submit cross objections to counter the suit of the appellants.
Primarily, it was burden of the appellants to prove nature of tenancy with requisite dimensions and part of the premises under their occupation as tenants.
Due discharge of this burden could have facilitated a plausible ground to the appellants to thwart the suit for eviction of the respondent landlord on the anvil of defect in notice under Section 106 Transfer of Property Act for determination of tenancy.
Although appellants have pointed out many pitfalls in the ocular and documentary evidence of the respondents but in all fairness in the considered view of this Court, their own evidence was absolutely vague and cryptic lacking the requisite sting to prove dual nature of tenancy.
On objective analysis of the evidence brought on the record, a very hazy scenario has emerged out to establish nature of tenancy which has persuaded both the learned Courts below to non-suit the appellants.
It is trite that in landlord tenant relationship, tenancy can be written as well as oral.
For ascertaining nature of [13].tenancy, dimensions of the rented premises and other terms of tenancy, the primary evidence is the rent deed or instrument of tenancy.
Besides the rent deeds, the appellants have also not produced any rent receipt showing nature of tenancy or dimensions and particulars about rented premises.
Ocular evidence of the appellants is also not convincing so as to dislodge the oral and documentary evidence of the respondents.
Learned trial Court examined the matter threadbare and non-suited the appellants in their pursuit.
Before the fiRs.appellate Court yet again the appellants made endeavour for an affirmative verdict but the efforts proved abortive.
At no point of time the appellants have succeeded in impeaching the evidence tendered by the respondents or in dislodging the foundation of their claim before both the learned Courts below.
This sort of situation has made the task very difficult for the appellants before this Court so as to assail concurrent finding of fact.
Counsels for the rival parties have relied upon many legal precedents for substantiating their contentions but I do not feel persuaded to discuss all these judgments elaborately.
Position of law is no [14].more res-integra that concurrent finding of fact is not to be disturbed by this Court under Section 100 CPC when no substantial question is involved.
Hon'ble Apex Court, in case of State Bank of India & ORS.versus S.N.Goyal [(2008) 8 SCC92, has explained the meaning and scope of the expr4ession “substantial question of law”.
in Para 13 of the verdict, which is quoted hereunder: 13.
Second appeals would lie in cases which involve substantial questions of law.
The word “substantial”.
prefixed to “question of law”.
does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties.
“Substantial questions of law”.
means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties.
In the context of Section 100 CPC, any question of law which affects the final decision in a case is a substantial question of law as between the parties.
A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law.
Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law.
It is said that a substantial question of law arises when a question of law, which is not finally settled by this Court (or by the High Court concerned so far as the State is concerned).arises for consideration in the case.
But this statement has to be understood in the correct perspective.
Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a [15].substantial question of law, even if the question of law may be one of general importance.
On the other hand, if there is a clear enunciation of law by this Court (or by the High Court concerned).but the lower court had ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by this Court (or the High Court concerned) would have led to a different decision, the appeal would involve a substantial question of law as between the parties.
Even where there is an enunciation of law by this Court (or the High Court concerned) and the same has been followed by the lower court, if the appellant is able to persuade the High Court that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two viewpoints, it can be said that a substantial question of law arises for consideration.
There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case.
Be that as it may.
Applying ratio decidendi in SBI's case (supra).in the facts and circumstances of this case, the irresistible conclusion of this Court is that no substantial question is involved in the matter requiring adjudication.
It is trite that concurrent finding of facts recorded by the Courts below do not warrant interference in a Second Appeal in a routine manner.
Reliance in this behalf can be profitably made to a [16].decision of Hon'ble Supreme Court in case of Karnataka Board of Wakf versus Anjuman-E-Ismail Madris-Un-Niswan [(1999) 6 SCC343.
The Apex Court made following observations in Para 17 of the verdict.
17.
In the narration of facts of this case in the paragraphs hereinabove, we have referred to minimal facts of the case only to show that the question involved in the suit as well as in the appeal was a pure question of fact.
The recitals in the documents produced by the plaintiff itself established on their face the facts necessary to settle the question in dispute, without even having to interpret the contents of the documents.
The two courts below have correctly understood the same.
In the instant case, if the learned Judge of the High Court felt that there was a need for examining the evidence to find out whether the findings of the lower courts were either perveRs.or not borne out of records then we would have expected him to refer to and discuss the evidence in detail, pointing out the fatal error committed by the courts below in their finding of fact.
In the instant case, the High Court after quoting extensively from certain judgments of this Court and without pointing out how the ratio of those judgments applied to the facts of the present case, reversed the concurrent finding which, in our opinion, was wholly unwarranted.
The trial court noted the specific admissions made by PW1during the couRs.of his cross- examination which clearly negatived the case of the plaintiff/appellant.
It also came to the conclusion that the evidence of PW1with reference to lack of opportunity given to the plaintiff was “clearly false”.The fiRs.appellate court during the couRs.of its judgment held that the plaintiff at the fiRs.appellate stage had filed a fabricated affidavit in support of its application under Order 41 Rule 27 CPC for additional evidence, and directed that steps should be taken to impound the affidavit in question and to keep the affidavit in safe custody for further action in the matter against the persons concerned.
If really the High Court had applied its mind to the facts of the case, as understood by the two lower [17].courts, then certainly it should have commented upon the above circumstances relied upon by the lower courts.
All these facts noted above give us an impression that the High Court has interfered with the concurrent findings of the two courts below in a routine and casual manner by substituting its subjective satisfaction in the place of the lower courts.
The Hon’ble Apex Court, in yet another decision in case of Gurdev Kaur ORS.versus Kaki [(2007) 1 SCC546, reiterated the same principle that concurrent findings of facts are not to be interfered with in Second Appeal.
In Para 74, the Apex Court held as under: 74.
The High Court seriously erred in interfering with the findings of facts arrived at by the trial court and affirmed by the fiRs.appellate court.
In the final conclusion, while issuing a word of caution to the High Court not to interfere with concurrent finding of fact after 1976 amendment in CPC and even prior to the amendment, the Court made following observations in Para 81 & 82 of the verdict: 81.
Despite repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases.
In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100 CPC in 1976.
The High [18].Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 CPC.
The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention.
82.
In view of the clear legislative mandate crystallised by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the High Court in law could not have interfered with pure findings of facts arrived at by the courts below.
Consequently, the impugned judgment is set aside and this appeal is allowed with costs.
Thus, viewed from any angle, I am not inclined to interfere with the concurrent finding of fact recorded by both the Courts below and in my considered opinion no substantial question of law is involved in this appeal.
The upshot of the above discussion is that the instant appeal sans merit and the same is accordingly dismissed.
No order as to costs.
(P.K.LOHRA).J.
arora/