M/S Frontier Biscuit Factory Pvt. ... vs Smt. Veeran Devi And Anr.
2000 Latest Caselaw 953 Del

ORDER

Khan, J.

1. Respondent No.1 filed Suit No. 21/91 for recovery of possession of Shop No. 16/2 in Ashok Vihar, Delhi of which she claimed to be the tenant. She alleged that she was illegally dispossessed by Respondent No. 2 (land-lord) by inducting appellant herein after she had lost her mental balance which had kept her away for three years or so.

2. The landlord (R-2) resisted the suit on the plea that she had surrendered possession of Shop to him on 12.10.85. Thereafter premises was rented out to petitioner herein.

3. Trial court framed issues in the suit, of which following three issues are material for disposal of this appeal:

(i) Whether plaintiff was tenant of Shop No. 16/2, Ashok Kumar, Delhi.

(ii) Whether plaintiff and her son had voluntarily surrendered the possession.

(iii) Whether plaintiff has been illegally dispossessed from shop.

First issue was decided against plaintiff/(R-1) and second in her favour but her suit was dismissed.

She took appeal against this and Ist Appellate court held her to be a tenant on the basis of landlord's own admission. It also affirmed the finding of trial court on second issue concluding that plaintiff had not surrendered the possession and was illegally dispossessed.

4. Appellant (new tenant in possession) has filed this second Appeal to assail the judgement. L/C for Appellant, Mr. Kaul submitted that courts below had fallen in error while returning the finding that plaintiff (R-1) had not surrendered the possession of the shop. Her surrender was writ large on the record because of her being away from the scene for as long as seven years. He cited the Supreme Court Judgement in Ishwar Dass Jain Vs. Sohan Lal 1999 SLT 209 in support holding that where material evidence was not considered which could have resulted to opposite conclusion or where inadmissible evidence was considered which if omitted could lead to opposite conclusion, even findings of facts could be reopened in second Appeal.

5. I am afraid this is not a case where any material evidence was left out of consideration or any inadmissible evidence was considered. In the present case, landlord (R-2) had claimed that possession of shop was surrendered to him which he had failed to prove leading to concurrent finding by two courts below. Nothing was shown or produced to persuade this court to disturb the finding. Nor was any question of law shown to be involved in the matter.

6. This Appeal accordingly fails and is dismissed.