Full Judgment
S.P. Srivastava, J.
1. Heard the learned counsel for the defendants/appellants.
2. Perused the record.
3. The defendants/tenants-appellants feel aggrieved by the judgment and decree passed by the trial Court for their eviction from the premises in dispute and recovery of arrears of rent and damages for use and occupation which has been affirmed by the first Appellate Court.
4. The suit giving rise to this appeal had been filed on 20-6-1984. In Paragraph 1 of the plaint, the plaintiff had come up with the clear cut allegation that a piece of land having an area of 10 bighas had been allotted to the plaintiff which consisted of portions of survey plot No. 419 and survey plot No. 826. On the aforesaid land which had been allotted by the State Government to the plaintiff, several residential quarters had been constructed; out of which quarter No. 4 had been let out to Ram Kinkar, the predecessor-in-interest of the defendants. The tenancy which had been granted to Ram Kinkar had devolved upon his widow, Smt. Vimla Devi, who had been impleaded as the defendant No. 1 and his son, Vijay Kumar, who had been impleaded as the defendant No. 2 in the suit. The plaintiff in support of his case about there being a relationship of landlord and tenant between the plaintiff and Ram Kinkar had produced the rent note, exhibit P-4, which had been executed by Ram Kinkar in respect of the quarter No. 4. The premises in dispute had been let out to Ram Kinkar at a rental of Rs. 7/- per month.
5. The plaintiff had also asserted that during the currency of the tenancy, the defendants had encroached upon certain area of the land belonging to the plaintiff and had increased the area of the premises under their tenancy. This was done without any jurisdiction or authority. The decree for eviction of the defendants was sought for even for the aforesaid area.
6. It may be noticed that the area of survey plot No. 419 has been shown in the relevant khasras as 4 bighas 12 biswas and the area of survey plot No. 826/1 however shown as 9 bighas 5 biswas. So far as the survey plot No. 826 is concerned, it has been shown as 27 bighas 12 biswas.
7. The defendants had contested the suit denying the plaint allegations. Smt. Vimla Devi, the widow of Ram Kinkar had also set up a plea that she had been granted a patta by the State Government on 10-8-1984 in respect of a total area of 30 sq. mtrs., out of the survey plot No. 826/1. The length and width of this plot was shown to be 5 mtrs. in North, 6 mtrs. in East, 5 mtrs. towards South and 6 mtrs. towards West.
8. The defendants claimed that in view of the settlement of the land covering the said patta, no decree for eviction could be passed against them.
9. The trial Court as well as the first Appellate Court have concurrently found that the plaintiff had succeeded in establishing that there was a relationship of landlord and tenant between the plaintiff and Ram Kinkar, the predecessor-in-interest of the defendants.
10. It is, therefore, obvious that the relationship of landlord and tenant continued to exist between the plaintiff and the defendants on the date of the suit.
11. The trial Court as well as the first Appellate Court have also concurrently found that the defendants were defaulters in the payment of the rent and a notice had been duly served with the notice as required under the Transfer of Property Act, 1882. It is not in dispute that the provisions of the Madhya Pradesh Accommodation Control Act, 1961 are not attracted to the premises in dispute.
12. Both the Courts below have further concurrently negatived the plea of the defendants about there being an agreement of sale in respect of the land in dispute between the plaintiff and the defendants and the story about the same has been found to be false. It was further found that the defendants had not been able to establish that any part of the premises in dispute including the portion which had been claimed to have been encroached upon formed part of the area which had been claimed to have been settled in favour of the defendant No. 1 under the patta dated 10-8-1984.
13. It may be noticed that it is settled law that when a tenant encroaches on land outside his tenancy but belonging to his landlord, he obtains only the right of tenancy under his landlord.
14. The aforesaid findings recorded by the Courts below are based on an appraisal of evidence on record. The learned counsel for the appellants has not been able to demonstrate that these findings suffer from any such legal infirmity which may justify an interference therein by this Court while exercising the limited jurisdiction envisaged under Section 100 of the Civil Procedure Code.
15. It may be noticed that during the pendency of the appeal, two applications i.e., I.A. No. II dated 26-4-95 and I.A. No. 1676/97 dated 8-1-97, had been filed praying for adducing the additional evidence.
16. The evidence sought to be brought on record touches a question of fact. The effort of the appellants is to establish that the land which was the subject matter of patta dated 10-8-84 in fact fell within the area which had been said to be encroached upon. This matter requires investigation into a question of fact.
17. In the aforesaid connection, it may be noticed that this Court in its decision in the case of Rajendra Kumar v. Ramesh Chand Garg and two Ors., S.A. No. 583 of 1999 decided on 9-3-2000, had pointed out that considering the nature and scope of the jurisdiction envisaged under Section 100 C.P.C., additional evidence touching upon a question of fact cannot be allowed to be brought in relying upon a decision of the Allahabad High Court in the case of Ranglal v. Lilawati and Ors., reported in AIR 1929 All. 375. In its aforesaid decision, the Allahabad High Court had observed that in spite of the fact that Order 42 C.P.C. declares that the rules of Order 41 C.P.C. shall apply so far as may be to second appeals, yet in second appeals decisions of fact cannot be impugned and the evidence tendered in order to impugn a question of fact which cannot be used for the purpose for which it is tendered cannot be allowed to be brought on record as an additional evidence.
18. The learned Single Judge in his aforesaid decision in the case of Ranglal (supra) drawn support from the decision of the Calcutta High Court in the case of Shamshuddin Biswas v. Molannessa Bibi, reported in AIR 1926 Cal. 941 at 943, and the Lahore High Court in its decision in the case of Wali Mohammad v. Mohammad Baksh, reported in AIR 1924 Lahore 444 at 445, had indicated that where a party wishes to produce further evidence affecting a matter of fact, it must get that evidence produced before a Court which can decide a question of fact. It is useless for him to tender that evidence before a Court which is confined to question of law.
19. The ratio of the aforesaid decisions stands clearly attracted to the facts and circumstances of the present case.
20. The aforesaid applications seeking to bring on record the additional evidence, considering the facts and circumstances of the present case, deserve to be and are hereby rejected.
21. No substantial question of law is involved in this appeal.
22. This appeal lacks merit and is accordingly dismissed under Order 41 Rule 11 C.P.C.