HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 19 Case :- SECOND APPEAL No. - 905 of 2015 Appellant :- Vinod Kumar Gupta Respondent :- Gopal Ji Counsel for Appellant :- Prabhakar Awasthi Counsel for Respondent :- N.C. Chaturvedi, N.K. Chaturvedi Hon'ble Pramod Kumar Srivastava,J.
1. S.C.C. Suit No. 37 of 2005, Gopal v. Vinod was filed for recovery of arrears of rent and ejectment by plaintiff-landlord against defendant-tenant. In said case, written-statement was filed by defendant claiming to be the co-owner of disputed house because of of the Benami transaction of purchase of this house by his father in the name of his elder brother (plaintiff Gopal). Since defendant had denied his tenancy and claimed to be the co-owner of disputed house, therefore, on the basis of dispute being raised on rights and title of plaintiff, the plaint was returned in civil court, where it was registered as original suit no. 253 of 2007, Gopal Ji v. Vinod Kumar Gupta, in court of Civil Judge (Senior Division), Gorakhpur.
2. In the trial court, plaint case was the same as it was in earlier Court of JSCC, as plaintiff claimed himself to be the owner and landlord of the house in question in which the defendant (present appellant) was his tenant, and after termination of tenancy as the status of defendant was that of trespasser; so plaintiff has sought relief of recovery of arrears of rent and ejectment of the defendant from disputed house. In original suit, defendant filed written statement reiterating his earlier stand. He pleaded that disputed property was purchased by Ratan Lal Gupta, the father of parties, for joint Hindu family as Benami in the name of his brother Gopal Ji (plaintiff); then after the death of their parent, parties and their other brothers became co-owners of disputed house. Defendant further pleaded that his possession in this house is that of co-owner and not as tenant, therefore, suit should be dismissed.
3. The trial court had framed issues, accepted the adduced evidences and thereafter the court of Additional Civil Judge (Senior Division), Court No.-2, Gorakhpur had passed the judgment dated 19.02.2015, by which suit was partly decreed for eviction of defendant and handing over possession of disputed property to plaintiff. In this judgment, trial court had given finding to the effect that plaintiff had failed to prove that his relation with defendant was that of landlord and tenant; but the plaintiff is the sole owner of disputed property, and the defendant had failed to prove his pleading of co-ownership. Therefore, plaintiff's suit is partly decreed only for the eviction of defendant and for recovery of possession from him to plaintiff.
4. Against the judgment of trial court, Civil Appeal no. 42/2015, Vinod Kumar Gupta v. Gopal Ji, was preferred by defendant of the original suit. This appeal was heard and dismissed by the judgment dated 10.08.2015 of the District Judge, Gorakhpur, who had confirmed the findings and judgment of trial court. In this judgment, first appellate court had also held that the relationship of landlord and tenant between the plaintiff and defendant is not proved, but it is proved that plaintiff is the owner of disputed house and defendant is residing in this house in unauthorized way, therefore, he should be evicted. Aggrieved by these judgments of trial court and the first appellate court, present second appeal has been preferred by the defendant of original suit.
5. Learned counsel for the appellant contended that findings of the two courts below are perverse because the trial court as well as the first appellate court had not considered the right of coparcenery of defendant-appellant. He also contended that both the courts below had not considered the long and uninterrupted adverse possession of appellant, on the basis of which original suit should have been dismissed. The main contention of learned counsel for the appellant was that in that plaint case of plaintiff's land-lordship and defendant's tenancy as well as termination of tenancy could not be proved. Therefore, when plaint case could not be proved, then original suit should have been dismissed and civil appeal should have been allowed. He contended that for these reasons, appeal may be admitted for being allowed.
6. Contentions of appellant side was refuted by learned counsel for the respondent-plaintiff, who accepted that plaintiff's case of land-lordship and tenancy with defendant-appellant was not accepted by the two courts below through their concurrent findings of fact, but both the courts had given specific finding that plaintiff-respondent is sole owner of disputed property and defendant's possession in it is that of trespasser. He contended that even in plaint the status of defendant-appellant at the time of filing of original suit was mentioned as that of trespasser, therefore the plaintiff's suit for eviction of trespasser/ defendant from disputed property was rightly decreed. He argued that in these circumstances, both the courts below had no option but to pass decree of eviction of defendant-appellant. Therefore, this appeal should be dismissed as there arises no substantial question of law.
7. In both the courts below, appellant had claimed his rights over disputed property as co-owner. There has been specific findings of fact by the trial court as well as first appellate court that defendant is neither co-owner nor coparcener of disputed property. Although plaintiff's case of defendant's tenancy was not accepted by both the courts, but there was concurrent and specific finding of fact that plaintiff is owner of said property, in which the possession of defendant-appellant is that of a trespasser. Therefore, he should be evicted. Both the courts have given their findings after appreciating evidences and found that plea of coparcenery right of appellant was not proved. These findings relate to facts. Both the courts have appreciated evidences meticulously and passed these findings by reasoned order, which are apparently correct and acceptable. There appears no impropriety in these findings.
8. So far contention of appellant's side is concerned that due to not proving of the plaint case regarding tenancy of appellant suit should have been dismissed; this argument is received for being rejected. Admittedly the plaintiff's ownership of disputed property is proved. Although his plea of tenancy of defendant is not proved but he had specifically pleaded in paragraph-14 of the plaint that defendant is a trespasser. Trial court as well as first appellate court had given specific finding that the status of appellant-defendant in disputed property is that of a trespasser. There is no need to emphasize that whether plaintiff's case land-lordship and tenancy is proved or not, but when it is proved that plaintiff is true owner of disputed property and defendant's possession in it is that of a trespasser, then court should pass order of eviction of trespasser for sake of justice. The same was done in present case and there is no error in it.
9. During argument, plea of adverse possession was raised but the same is not mentioned in pleading of defendant-appellant nor is proved by any evidence. The trial court had framed specific issue on point of limitation and that was decided against appellant. Such plea is unacceptable in second appeal. The real dispute between the parties has been as to whether the plaintiff is owner of disputed property or not and whether he is entitled to recover possession from defendant or not. These are questions of fact and can be decided on basis of adduced evidences, as has been decided. There appears no point of law involved in present matter.
10. On examination of the reasonings recorded by the trial court, which are affirmed by the learned first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate court are well reasoned and based upon proper appreciation of the entire evidences on record. No question of law, much less a substantial question of law was involved in this case before this Court. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial court that has been affirmed by the first appellate court to warrant interference in this appeal. None of the contentions of the learned counsel for the appellant-defendant can be sustained.
11. In view of the above, this second appeal is dismissed.
Order Date :- 30.11.2015 SR