Smt. Kamla Devi (Deceased) ... vs Chaman Lal S/O Shri Ganda Mal
2004 Latest Caselaw 1162 Del

JUDGMENT

Madan B. Lokur, J.

1. The Appellants are aggrieved by a judgment and decree dated 11th March, 2002 passed by the learned Additional District Judge in RCA No.21/1995.

2. Kale Ram was the tenant of the Respondent in respect of an area of 100 square yards and a khokha in plot No.29, Block A, New Govind Pura Colony, Delhi.

3. On 15th April, 1975, Kale Ram surrendered possession of the property in his occupation and a document Exh.PW-1/1 was executed between the parties.

4. According to the Respondent, Smt. Kamla Devi, wife of Kale Ram unauthorizedly occupied the suit property and claimed to be a tenant thereof through her husband Kale Ram.

5. Kale Ram died on 17th March, 1976 and thereafter Smt. Kamla Devi claimed to have inherited the tenancy rights because the suit property was being used for commercial purposes.

6. The Respondent asked Smt. Kamla Devi to vacate the suit property but she did not do so. Accordingly, a lawyer's notice was sent to her to vacate the suit property and when this also did not yield any result, the Respondent filed a suit for possession of the suit property and damages for use and occupation thereof.

7. Before the learned Trial Court, the following issues were framed on the basis of the pleadings of the parties:-

1. Whether the suit is bad for non-joinder of parties?

2. Whether the suit is properly valued for the purpose of court fee and jurisdiction?

3. Whether defendant is a tenant in the suit property on the monthly rent of Rs.40/- under the plaintiff?

4. If issue no.3 is proved in affirmative, whether this court has jurisdiction to entertain and try the present suit?

5. Whether the plaintiff is entitled to any damages/mesne profits if so, at what rate and to on what amount?

6. Whether plaintiff is entitled to the possession?

7. Relief.

8. The only issue that has really been contested by the parties is Issue No.3, namely, whether Smt. Kamla Devi was a tenant of the suit property.

9. By a judgment and decree dated 10th October, 1995, the learned Civil Judge decreed the suit for possession of the plot measuring 100 square yards and the khokha therein and also awarded Rs.7,200/- as damages/mesne profits for the use and occupation thereof.

10. Feeling aggrieved, Smt. Kamla Devi filed an appeal which came to be dismissed by the impugned judgment and decree. During the pendency of the first appeal, Smt. Kamla Devi expired and her legal heirs, the Appellants, were brought on record.

11. Two principal submissions were made by learned counsel for the Appellants. It was firstly contended that neither the lawyer's notice sent by the Respondent nor the plaint mentioned anything about Kale Ram having surrendered possession of the suit property to the Respondent. The submission, therefore, was that the Respondent has only cooked up a story that Smt. Kamla Devi was a trespasser and in unauthorized occupation of the suit property. The second contention of learned counsel was that both the courts below could not have drawn an adverse inference against the Appellants for non-production of a certain document containing the signatures of Kale Ram.

12. I do not find any merit in either of these contentions urged by learned counsel nor do I find any substantial question of law that has arisen which requires consideration by this Court.

13. In so far as the first contention is concerned, a reading of the lawyer's notice as well as the plaint show that there is no mention about Kale Ram handing over possession of the suit property to the Respondent but this is of no consequence. It has specifically been mentioned in both these documents that Smt. Kamla Devi had illegally and unauthorizedly taken possession of about 100 square yards in the suit property having a khokha therein. The Respondent had required Smt. Kamla Devi to vacate the suit property and to pay damages for use and occupation thereof. It was not necessary for the Respondent to have gone into all the background facts since his case simply was that Smt. Kamla Devi had unauthorizedly taken possession of the suit property and he was only concerned with regaining possession thereof. It is not (as has been suggested) that the case has been decided beyond the pleadings or that a new case was set up by the Respondent. On the contrary, it was Smt. Kamla Devi who claimed to be tenant under her husband and also claimed to have inherited the tenancy rights on the death of her husband. The parties were fully aware of the case set up by then and were required to prove it.

14. In so far as the second contention is concerned, it may be mentioned that Smt. Kamla Devi had set up a case that the document dated 15th April, 1975, that is, Exh.PW-1/1 executed by Kale Ram surrendering possession of the suit property was forged inasmuch as the signature purported to be of Kale Ram was not in fact his signature and that he had never surrendered possession of the suit property during his life time.

15. The document Exh.PW-1/1 was witnessed by two persons. The Respondent produced (other than himself) one of the witnesses to prove Exh.PW-1/1. Bhagwan Dass, a witness to the execution of the document, was examined as PW-2 and he stated that Kale Ram had signed the document in his presence and delivered possession of the suit property to the Respondent on 15th April, 1975. During cross-examination, it was stated by this witness that he had seen Kale Ram at the time of executing the document. The other witness was partly examined but he did not turn up later on for further examination.

16. During the course of evidence of the parties, it came on record that Kale Ram had purchased a house in Jagatpuri. According to Smt. Kamla Devi, the document evidencing purchase of property by Kale Ram contained his true signature. Smt. Kamla Devi did not produce this document despite an opportunity having been granted and, therefore, both the Courts below felt that an adverse inference should be drawn against Smt. Kamla Devi in this regard. In other words, Smt. Kamla Devi did not produce any evidence to dispute the signature of Kale Ram on Exh.PW-1/1.

17. It was argued on behalf of Smt. Kamla Devi that there was another document on record, that is, Exh.PW-4/6 which also contained the true signature of Kale Ram and that a comparison should have been carried out between Exh.PW-4/6 and Exh.PW-1/1 to find out whether the signature of Kale Ram on Exh.PW-1/1 was genuine or not.

18. Both the Courts below held that it was the case of the Respondent that both the documents Exh.PW-4/6 and Exh.PW-1/1 contain the true signatures of Kale Ram. It was only Smt. Kamla Devi who disputed the correctness of the signature on Exh.PW-1/1 and she should have taken some steps to show that the signature on Exh.PW-1/1 was not that of Kale Ram. She did not seek to call any handwriting expert in support of her case. She wanted to produce some document containing the true signature of Kale Ram but she did not do so leading both the Courts below to rightly draw an adverse inference against her.

19. The above facts clearly show that the controversy in this case is entirely factual and no question of law, much less a substantial question of law has arisen in the matter.

20. It is worthwhile to mention that it has been held by the Supreme Court in Ishwar Dass Jain vs. Sohan Lal, and Kulwant Kaur vs. Gurdial Singh Mann, that in a second appeal, interference with a finding of fact is permissible only under three situations, namely, when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. Secondly, where a finding has been arrived at by the appellate Court by placing reliance on indmissible evidence which, if omitted, could possibly lead to an opposite conclusion, and thirdly where the finding of fact arrived at is perverse. None of the three situations arise in the present case.

21. There is no allegation that material evidence has not been considered or inadmissible evidence has been considered by both the Courts below. The finding of fact arrived at by both the Courts below does not appear to be perverse in any manner. The documents were validly proved and Exh.PW-1/1 does not lead to any conclusion other than that Kale Ram had handed over possession of the suit property to the Respondent. Smt. Kamla Devi had not been able to show how, if at all, she had acquired any interest on the suit property.

22. Since no substantial question of law arises in this second appeal, it is dismissed.