HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 538/2002
1. Aamna W/o Late Shri Abdul Sakoor Deceased,
2. Latif S/o Shri Abdul Sakoor,
3. Waheed S/o Shri Abdul Sakoor Deceased
4. Hakim S/o Shri Abdul Sakoor,
5. Munna @ Abdul Sattar S/o Shri Abdul Sakoor,
6. Abdul Hamid S/o Shri Abdul Sakoor,
7. Jatoon D/o Shri Abdul Sakoor,
8. Jameela D/o Shri Abdul Sakoor,
9. Wakeela D/o Shri Abdul Sakoor(Deceased)
All resident of Jaipur City Chowkari Purani Basti,
Nahargarh Road, Lambay Sarak Dukan, Paschin Mukhi
Mandir, Nadirji Ke Bahar, Jaipur
10. Smt. Munna W/o Late Shri Abdul Rajjak
11. Abdul Aziz S/o Shri Abdul Rajjak,
12. Munnwar D/o Shri Abdul Rajjak
13. Madina D/o Shri Abdul Rajjak
14. Munni D/o Shri Abdul Rajjak
15. Mahamuna D/o Shri Abdul Rajjak
16. Nasim D/o Shri Abdul Rajjak
17. Ajij Bano D/o Shri Abdul Rajjak
All resident of Jaipur City Chowkari Purani Basti, House
No. 2077, Nahargarh Road, Near Mandir Nadiraji
(Behind), Jaipur
----Appellants-Defendants
Versus
1. Thakurji Shri Krishan Bihari Nadirji Virajman, Jaipur City
Chowkari Purani Basti, Nahargarh Through Mahant Shri
Shankar Lal
2. Shankar Lal Deceased
2/1. Smt. Santosh Devi Wife of late Shri Shankar Lal
2/2. Navindra Tiwari Son of late Shri Shankar Lal,
2/3. Smt. Chanda wife of Shri Giriraj, Daughter of late Shri
Shankar Lal
2/4. Smt. Ranjana Wife of Shri Ashok, daughter of late Shri
(Downloaded on 06/08/2022 at 09:03:24 PM)
(2 of 12) [CSA-538/2002]
Shankar Lal,
All resident of Jaipur City Chowkari Purani Basti, House
No. 2077, Nahargarh Road, Near Mandir Nadiraji Behind,
Jaipur
-----Plaintiffs-respondents
3. Abdul Rashid S/o Shri Abdul Rajak, R/o Jaipur City Chowkari Purani Basti, House No. 2077, Nahargarh Road, Near Mandir Nadiraji Behind, Jaipur
----Proforma Respondent For Appellant(s) : Mr. M.M. Ranjan, Senior Advocate assisted by Mr. Hemendra Sharma For Respondent(s) : None Present HON'BLE MR. JUSTICE SUDESH BANSAL Judgment 02/08/2022
1. Appellants-defendants-tenants have preferred this second appeal under Section 100 CPC assailing the judgment and decree dated 03.09.2002 passed in Civil First Appeal No.32/1999 by the Court of Additional District Judge No.2, Jaipur City, Jaipur, affirming the judgment and decree for eviction dated 02.09.1999 passed in Civil Suit No.518/1976 by the Court of Additional Civil Judge No.5, Jaipur City, Jaipur whereby and whereunder the civil suit for rent and eviction filed by respondent-plaintiff-temple Shri Krishan Bihari Nadirji Virajman, has been decreed on merits.
2. This second appeal is required to be considered on the substantial questions of law formulated by the Co-ordinate Bench of this Court vide order dated 04.10.2006 which, read as under:-
"(I)Whether when the tenancy was composite for residence and for commercial purpose then a decree of eviction can be passed on the ground contained under Section 13(1)(J) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950?"(Downloaded on 06/08/2022 at 09:03:24 PM)
(3 of 12) [CSA-538/2002] "(II)Whether purchase of a house by one of the tenant can be a ground for eviction of two tenants and the decree of eviction passed by the courts below are vitiated?"
3. In order to appreciate both substantial questions of fact, it is necessary to re-capitulate the facts of case arising out of the pleadings and material available on record which are as under:-
4. Respondents-plaintiffs instituted a civil suit for eviction way back on 26.08.1976 under the provisions of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred as 'the Act of 1950'). The tenancy of appellants-defendants in the premise in question was alleged on the basis of rent note dated 01.04.1961, at the rate of Rs.40/- per month though the defendants claim their tenancy since prior to 1938. Plaintiffs came out with a specific case that the rented premise was let out for residential purpose and wherein defendants started to run commercial activities as they installed kuti machine and ara machine in the rented premise nohra of temple. The rented premise is situated nearby the temple and the nature of rented premise is residential which is mentioned in the plaint as under:-
"नोहरा वाके शहर जयपुर चौकड़ी पुरानी बस्ी, सड़क नाहर गढ़ चौराहा बारह माईयान, मंदिर नािर जी के पीछे पद्ंम िेख्ा हआ ह उसके केवल अंिरूनी मकाना् मंदजल पहली मम ही व चौक व ्हार् के हकहकह इस्ेमादल।"
5. Apart from other grounds of default, sub-letting, material alteration and nuisance, plaintiffs sought amendment in the plaint and in the amended plaint in Para No.9( क), specifically pleaded that defendant-tenant has acquired alternative and suitable premise as the defendant Abdul Rajjak and his successor Joje Munnu have purchased one double storied building bearing (Downloaded on 06/08/2022 at 09:03:24 PM) (4 of 12) [CSA-538/2002] municipal No.964 at Chowkri Topkhana, Hajoori Rasta, Khurha Luharan, Macchiwalon ka Mohalla, Jaipur through registered sale deed dated 04.07.1967 and has got possession of the said premise. Plaintiffs prayed to grant the decree for eviction on various grounds including one of the additional grounds of default, sub-letting, nuisance and material alteration that tenants have acquired alternative suitable accommodation, hence they are entitled to evict defendants-tenants. It may be noticed that such additional ground of eviction is available under Section 13 of the Act of 1950, which reads as under:
"Section 13(1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree; or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefore to the full extent allowable by this Act, unless it is satisfied-
(i)that the tenant has built, acquired vacant possession of or been allotted a suitable residence."
6. Appellants-defendants submitted written statements and admitted their tenancy in the rented premise though denied the rent note dated 01.04.1961 and claimed their tenancy prior to that. It may be noticed that defendant No.2 Abdul Rajjak though was alleged as sub-tenant in the plaint but defendants took a specific defense that they are the tenants in the rented premise.
As far as, the purchase of premise bearing municipal No.964 through registered sale deed dated 04.07.1967 by defendant No.2 Abdul Rajjak is concerned, this fact was not in dispute but defendants took a defense that the purchased premise is not vacant and the same is in possession of one tenant namely Mohd. Umar. Then defendants took a defence that alternative premise is (Downloaded on 06/08/2022 at 09:03:24 PM) (5 of 12) [CSA-538/2002] not vacant, hence ingredients of Section 13(1)(i) are not established.
7. The learned trial court, on the basis of rival pleadings of both parties framed as many as twelve issues including issues No.10 & 11, which are clinching issues in the present appeal. As far as, other issues related to letting out the rented premise through rent note dated 01.04.1961, default, material alteration, sub-letting, nuisance etc. are of not much relevance here. Issues No. 10 & 11 are relevant which are reproduced herein:-
"10.Whether defendant has got suitable residence, therefore, plaintiff is entitled for the decree of eviction?
11.Whether defendant No.2 Abdul Rajjak was sub- tenant and if alternatively he is treated as tenant, whether plaintiff is entitled for the eviction decree against him as well?"
8. Both parties adduced their respective evidence. From the side of appellants, PW.1 to PW.6 were examined and documents were exhibited. In rebuttal, from the side of defendants, DW1 to DW3 were examined and documents were exhibited.
9. Learned trial court vide judgment and decree dated 02.09.1999 has recorded a fact finding that defendant No.2 Abdul Rajjak is tenant in the rented premise and he is not the sub- tenant. Such finding has been passed while deciding the issue No.4, regarding sub-letting. After recording such finding, learned trial court has observed that defendant No.2 Abdul Rajjak has purchased another premise vide registered sale deed dated 04.07.1967 (Ex.1). As far as, the defence of defendants that vacant possession of the purchased premise was not obtained, was dis-believed as defendants could not show that the purchased premise is in possession of another tenant namely Mohd. Umar. (Downloaded on 06/08/2022 at 09:03:24 PM)
(6 of 12) [CSA-538/2002] The defence taken by defendants-tenants, to refute the ground of eviction as enshrined under Section 13(1)(i) was not found proved and in view of an undisputed and admitted fact that defendants- tenants have purchased alternative premise through registered sale deed dated 04.07.1967 and have got possession, the trial court passed the eviction decree on this ground.
10. Appellants-defendants assailed the decree for eviction by way of filing first appeal. Since, the decree was passed on the findings of issues No.10 and 11 and on the ground of Section 13(1)(i) of the Act of 1950, therefore, to this extent the decree was challenged and the finding of trial court passed against plaintiffs in relation to the other grounds were not assailed before the first appellate court. The first appellate court, while deciding first appeal on merits vide judgment and decree dated 03.09.2002, has held that appellants-defendants have executed rent note dated 01.04.1961 for a period of 11 months. The execution of the rent note (Ex.2) has been proved by plaintiffs, by his evidence as well as producing witnesses PW.2, PW.4 & PW.5. In relation to acquire the alternative, suitable and vacant accommodation to appellants-defendants, is concerned, the appellate court observed that the DW.1 Abdul Azeez admits to purchase the house through Registry (Ex.1) dated 04.07.1967. DW.1 also admits that the purchased house is double storied. The appellate court observed that the sale deed (Ex.1) itself contends a recital that the vacant possession of the house, has been handed over to purchaser. The appellate court observed that the contention of defendants that the purchased house is in possession of another tenant namely Mohd. Umar, is not proved as DW.1 Abdul Azeez himself admits that he has not visited the (Downloaded on 06/08/2022 at 09:03:24 PM) (7 of 12) [CSA-538/2002] purchased house. The statements of DW.3 Abdul Latif have been noticed to be contradictory to statements of DW.1 and there is no other evidence adduced by defendants-tenants to prove that the purchased house is in possession of tenant Mohd. Umar. The plaintiffs evidence that defendants have acquired vacant and suitable alternative residence, is found sufficient to prove the essential ingredients of Section 13(1)(i) of the Act of 1950. Therefore, the first appellate court observed that the defence and arguments raised by defendants are not proved and the trial court has rightly passed the decree for eviction vide judgment dated 02.09.1999.
With the aforesaid fact findings & material available on record, now the substantial questions of law are considered.
11. Substantial Question of Law No.1:-
As far as this substantial question of law is concerned, it may be observed that such substantial question of law does not arise out of pleadings of the plaint. In the plaint, plaintiff-landlords have come out with a clear case that the suit premise was let out through rent note dated 01.04.1961 for the residential purpose ad defendants-tenants have started to use the premise for commercial activities by installing a kuti machine and ara machine. Thus, it may not be said that it is a case of landlords- plaintiffs that rented premise was let out for composite purpose it means for both residential and commercial purpose. Though, it is the defence of defendants-tenants but the same has not been proved. The question of law which does not arise out of basic pleadings of the plaint, may not be held to be involved at the stage of second appeal. Both courts below have considered pleadings of plaint and in view of the admitted and undisputed fact (Downloaded on 06/08/2022 at 09:03:24 PM) (8 of 12) [CSA-538/2002] that defendants-tenants have purchased alternative & suitable accommodation of double storied house through registered sale deed dated 04.07.1967 and have got the possession of the same, have passed the decree for eviction on the ground as enshrined under Section 13(1)(i) of the Act of 1950. In that view, this substantial question of law is answered in negative against appellants and decided accordingly.
12. Substantial Question of Law No.2:-
As far as, this substantial question of law is concerned, it is not a case of two different tenants in the rented premise. In fact, plaintiffs instituted a civil suit claiming therein that the rented premise was let out to defendant No.1 Abdul Sakoor, who has sub- let this premise to defendant No.2 Abdul Rajjak. Defendants took a defence that Abdul Rajjak is the original tenant and not sub- tenant. On the basis of rival pleadings of parties, issue No.4 of sub-letting was framed. While deciding issue of sub-letting i.e. issue No.4, the trial court has recorded a finding that defendant No.2 Abdul Rajjak is the tenant in the rented premise and not sub- tenant. Such fact finding has attained finality as not challenged before the first appellate court. The tenancy of Abdul Rajjak is joint with the Abdul Sakoor. Therefore, it is not a case that out of two separate tenants, one co-tenant has acquired an alternative accommodation. Once it is an admitted fact that alternative accommodation has been purchased by defendant No.2 Abdul Rajjak through registered sale deed dated 04.07.1967, who is tenant in the rented premise, the same applies for the rented premise as a whole against defendants and the ground of eviction as enshrined under Section 13(1)(i) of the Act of 1950 stands available to landlords-plaintiffs. Moreover, it may be noticed that (Downloaded on 06/08/2022 at 09:03:24 PM) (9 of 12) [CSA-538/2002] defendants have not raised any plea in their written statements that both defendant No.1 & defendant No.2 are two separate tenants in the rented premise but their defence is both are tenants and defendant No.2 is not sub-tenant. Therefore, appellants- defendants can not be allowed to take a new defence at the stage of second appeal, to bifurcate & divide the single tenancy between two defendant No.1 & defendant No.2 separately. The question of law as alleged by appellants is whole beyond the scope of their defence taken in written statements, rather can be said to contrary to their defence. Accordingly, this substantial question of law deserves to be answered in negative and against appellants.
13. During course of arguments, from the side of appellants no other substantial question of law has been proposed/suggested and in addition to that, this Court also does not find any substantial question of law involved in this present second appeal.
14. The scope of interference by the High Court under Section 100 CPC against the concurrent findings of fact, has been discussed in umpteen number of judgments by the Hon'ble Supreme Court and it has been held that the High Court should not interfere in the fact findings unless the same are perverse and if the view taken by courts below is a plausible view, which is not contrary to the settled proposition of law, should not be interfered with. Few of the judgments of Hon'ble Supreme Court are as follows:-
The Hon'ble Supreme Court in case of Damodar Lal Vs. Sohan Devi & Ors. [(2016) 3 SCC 78] has observed as under:-
"Para 12.....Even if the finding of fact is wrong, that by itself will not constitute a question of law. The (Downloaded on 06/08/2022 at 09:03:24 PM) (10 of 12) [CSA-538/2002] wrong finding should stem out of a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity."
The Hon'ble Supreme Court in another case of C.Doddanarayana Reddy Vs. C.Jayarama Reddy [(2020) 4 SCC 659], while discussing the jurisdiction of the High Court to interfere with the finding of fact under Section 100 CPC has held that though the High Court could have taken different view acting as the trial Court but once, two Courts below have returned finding which is not based upon any misreading of material documents, nor against any provision of law neither could it be said that any judge acting judicially and reasonably could have reach such a findings, then, the Court cannot be said to have erred. Relying upon the previous judgment the Supreme Court has held as under:-
"Recently in another judgment reported as State of Rajasthan v. Shiv Dayal [(2019) 8 SCC 637], it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded dehors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:
"16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose, J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. (Downloaded on 06/08/2022 at 09:03:24 PM) (11 of 12) [CSA-538/2002] Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43)."
15. Before parting with the present judgment, this Court would also like to consider the aim and object of the rent control legislation in order to consider that as to whether appellants-
tenants, who have completed the tenure of tenancy for more than 60 years in the rented premises (as per plaintiffs the tenancy of appellants commenced from 01.04.1961, where defendants claim their tenancy prior to year 1938) are entitled to seek protection under the Rent Control Act, 1950. It may be noticed that the rent control legislation was entitled to strike a reasonable balance between the landlord and tenant. At one hand where the tenant requires adequate protection against his eviction at the hands of aggressive designed greedy landlord, at the same time rights of landlord also require protection to increase the rent reasonably and to evict tenant on grounds permissible in law. The basic object of the Rent Control Act, 1950 is to save the harassment of tenant from unscrupulous landlords. The object of the Rent Control Act, 1950 may not be misconstrued to deprive the landlords of their bona fide properties for all times to come.
Such proposition of law was expounded by the Hon'ble Supreme Court in case of Shakuntala Bai Vs. Narayan Das reported in [(2004) 5 SCC 772], Satyavati Sharma Vs. Union of India Reported in [(2008) 5 SCC 287] & State of Maharashtra Vs. Super Max International Private Limited Reported in [(2009) 9 SCC 772].
16. Having discussed the second appeal on facts and law as well as on merits in detail as also considering the aim and object of rent control legislation, this Court is not inclined to interfere with (Downloaded on 06/08/2022 at 09:03:24 PM) (12 of 12) [CSA-538/2002] the decree for eviction passed against appellants-tenants, at least at the stage of second appeal. As a consequence, this second appeal is dismissed and the decree for eviction is sustained. There is no order as to costs.
17. After deciding the second appeal on merits, this Court is also taking note of arguments raised by the senior advocate on behalf of appellants-tenants that the rented premise is not in their actual and physical possession and appellants are not in use and occupation of the rented premise. He contends that the rented premise has been sealed by the Municipal Corporation for more than ten years. If that is so, appellants-tenants have not taken any steps to get de-sealed the rented premise. This fact itself fortifies and supports the eviction decree that appellants-tenants have got alternative premise and they would suffer no hardship, if the eviction decree is sustained.
However, considering the fact that the tenancy of appellants- tenants in the rented premise is from long period of more than 60 years, at least, and appellants have argued the appeal on merits, therefore three months time is granted to vacate and hand over the vacant possession of the rented premise to respondents- plaintiffs, subject to payment of arrears of mesne profits and future mesne profits, if any, as determined by this Court during course of this second appeal vide order dated 04.06.2006.
18. All other pending application(s), if any, also stand(s) disposed of.
19. Record of both courts below be sent back.
(SUDESH BANSAL),J SACHIN /98 (Downloaded on 06/08/2022 at 09:03:24 PM) Powered by TCPDF (www.tcpdf.org)