Raghunath Prasad Vs. Gulab Singh - Court Judgment

Excerpt:
civil procedure code - section 100--second appeal essential ingredient is that there must be a substantial question of law involved in the matter. if the findings are essentially findings of fact then those are not liable to be interfered with in the 2nd appeal. - - thereafter the plaintiff has been paying rent directly to delhi wakf board as well as to jamait-e-ulm-a-hind since the very inception of the sub-tenancy and the rent receipts up to july 1969 are in possession of the plaintiff. the plaintiff has been carrying on the fuel ration business as well as the business of motor transport in shops nos. 2728 and 2729. the defendant who is real brother of the plaintiff felt jealous of his business and tried to forcibly evict the plaintiff with the help of gundas and bad characters. finally on 26th july, 1969 the plaintiff and his sons as well as the defendant were arrested by the police when the defendant tried to dispossess the plaintiff from the said shop. it was further pleaded that the plaintiff being the younger brother of the defendant, the business in the shop in dispute as well as the shop bearing no. in paragraph 4 of the -written statement, it was pleaded that the business in the shop in dispute as well as the shop bearing no. he bad not financed that business.n.n. goswamy, j. (1) this second appeal by the defendant is directed against the judgment and decree dated 22nd april, 1981 passed by the addl. district judge, delhi whereby the first appeal filed by the plaintiff was allowed and his suit for possession of the shop in dispute was decreed.(2) in this suit for possession it was alleged that raghunath prasad, the defendant was a tenant of shop no. 2728 situated at sarai fasil, naya bazar, delhi at a monthly rental of rs, 8.20 under the delhi warf board. the plaintiff took the said shop on rent from the said raghunath prasad in the year 1944 at a monthly rental of rs. 8.00 and the rent was thereafter increased to rs. 16.40 per month the plaintiff used to pay a sum of rs. 8.20 to delhi wakf board and the remaining sum of rs. 8 20 was paid to the defendant. the sub-tenancy was created with the permission of jamait-e-ulm-a-hind, the then landlord of the shop from whom the property was transferred to delhi wakf board. the fact of subletting was also made known to the wakf board who had been accepting the rent from the plaintiff with the full knowledge of subletting of the premises to the plaintiff by the defendant. thereafter the plaintiff has been paying rent directly to delhi wakf board as well as to jamait-e-ulm-a-hind since the very inception of the sub-tenancy and the rent receipts up to july 1969 are in possession of the plaintiff. the plaintiff has been carrying on the fuel ration business as well as the business of motor transport in shops nos. 2728 and 2729 sarai fasil, naya bazar, delhi. the entry to that effect finds place in various records. the plaintiff is also in possession of coal license from the controller of rationing at the address of shops nos. 2728 and 2729. the defendant who is real brother of the plaintiff felt jealous of his business and tried to forcibly evict the plaintiff with the help of gundas and bad characters. finally on 26th july, 1969 the plaintiff and his sons as well as the defendant were arrested by the police when the defendant tried to dispossess the plaintiff from the said shop. the defendant, however, in the absence of the plaintiff broke open the locks and forcibly took possession of the shop. the defendant has now put his locks on the shop after breaking open the locks of the plaintiff.(3) the suit was contested by the defendants. besides rasing the- pleas regarding the court fee and jurisdiction, it was pleaded that the defendant has throughout been in possession of the shop and had never sublet the same to the plaintiff. it was further pleaded that the plaintiff being the younger brother of the defendant, the business in the shop in dispute as well as the shop bearing no. 2729 which is a part of the joint family house of the parties and other family members, always belonged to the joint hindu family although it was carried on in the names of different persons from time to time. in the additional pleas, it was stated that the plaintiff and the defendant have late been doing business jointly. the defendant was the financing partner in the fuel business carried on in the name of the plaintiff. the plaintiff later on became dishonest and, tried to grab the whole of the business and the capital; invested by; the defendant to himself and that is why the relationship between the parties was spoiled. according to the defendant,. the present suit was instituted a,t the instigation of the other persons and is based on false and malicious pleas.(4) on the pleadings of the parties, the learned trial judge framed the following issues:- 1. whether the plaintiff was a lawful subtenant in the suit premises under the defendant at the time of dispossession as alleged in the plaint. if so, to what effect 2. relief.(5) the plaintiff examined witnesses besides; himself in support of his case the plaintiff also proved on record ex p 1 to. exp, p3 which are the letters from the director of food & civil supplies, delhi addressed to the plaintiff at shops nos. 2728/29 he also produced the license for coal business issued by the authorities at the address of shop no. 2728. the plaintiff also examined a witness from the municipal corporation who proved the receipts of rent taken in respect of a 'takht' in front of shops no. 2728 and 2729. according to the witness, the rent was paid by the plaintiff in respect of the said 'takht the defendant also examined five witnesses besides making his own statement. on consideration of the entire evidence, on record, the learned trial judge came to the conclusion that the plaintiff was in possession of the shop in dispute, definitely from 25th september, 1951 to 14th july, 1969. while holding that the plaintiff was in possession of the shop for all these years, the learned trial judge further held that the plaintiff could not be said to be in lawful sub-tenancy in view of section 17(2) of the delhi rent control act and as such he was deemed to be in possession only as a licensee and with the permission of the defendant. in these circumstances, the suit of the plaintiff was dismissed.(6) in the appeal filed by the plaintiff before the addl. district judge, the learned addl. district judge while upholding the findings of possession, believed the statement of the plaintiff to the extent that he used to pay the rent to the defendant as also to the landlord for over 17 years and as such he was a lawful sub-tenant as the sub-tenancy was created admittedly before the 9th of june, 1952. the learned addl. district judge further held that it was not the case of the defendant that the plaintiff was in occupation as a licensee and as such the finding of the learned trial judge was beyond the pleadings of the parties.(7) though this second appeal is concluded by findings of fact but it was admitted by a learned judge of this court to determine the following question of law :- 'whether the finding of the lower appellate court that the respondent is the tenant of the appellant is perverse'.(8) considering the question of law framed by the admitting bench, i have been taken through the pleadings as also the evidence on record. in my opinion, the written statement of the defendant read with his statement on oath is enough to non-suit the defendant. in paragraph 4 of the -written statement, it was pleaded that the business in the shop in dispute as well as the shop bearing no. 2729 was a joint family business and was being carried on in the name of different persons from time to time. in the additional pleas, it was pleaded that the plaintiff and the defendant have late been doing business jointly and the defendant was the financing partner in the fuel business carried on in the name of the plaintiff. in the statement on oath, the defendant took a somersault. he deposed that he had never sublet this shop to the plaintiff he was previously having a milk shop and his other shop wa(r) at a distance of 25 to 30 yards from the shop in dispute and was on the other side of the road. according to him, he was using the shop in dispute as a store and for sitting of his customers he has put a table and chairs in the shop in dispute in cross-examination, he stated that he was not a partner in the fuel business with the plaintiff. he bad not financed that business. he admitted that the written statement was drafted at his instance. thus the statement is absolutely contrary to the pleadings where in hed stated that he was a financing partner of the plaintiff in the fuel business. neither . in the written statement nor in the statement on oath any case was set up by the defendant that the plaintiff was in possession as a licensee. in view of these contradictions, no exception can be taken to the findings recorded by the learned addl. district judge the findings are essentially findings of fact and not liable to be interfered with in second appeal.(9) for the reasons recorded above, i do not find any merit in this appeal which is hereby dismissed. considering that the parties are real brothers, they are left to bear their own costs throughout.