Harbhagwan (Since Deceased) ... vs Abdul Majid ( Since Deceased) ...
2010 Latest Caselaw 3874 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved on: 16.8.2010
                    Judgment Delivered on: 19.8.2010

+                         RSA No.100/1994


HARBHAGWAN (since deceased)
Through LRs.
                                           ...........Appellant
                     Through:   Mr.O.P.Khadaria & Ms.Indra,
                                Advocates.
                     Versus

ABDUL MAJID ( since deceased)
Through LRS
                                         ..........Respondent
                     Through:   Mr.Man Mohan Gupta, Advocate.


       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                 Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J.

1. This second appeal has impugned the judgment dated

21.9.1994. The appellant before this Court was the defendant

before the Trial Court. The Trial Court vide judgment and decree

dated 13.1.1988 had dismissed the suit of the plaintiff/respondent

namely Mohd.Majid.

2. Briefly stated the facts of the case are as follows:

(i) Plaintiff Abdul Majid had filed a suit for perpetual

injunction against the defendants Har Bhagwan and Prabh

Dayal. It was held that the plaintiff Abdul Majid along with

his brother Mhd.Ibrahim were joint tenants in respect of the

disputed property shop bearing no.XIII/3016, Bhagwan Ganj,

Bahadur Garh Road, Delhi at a monthly rent of Rs.16.88 since

1952. Hari Ram sold the property in the year 1970 to the

defendants. By operation of law, the plaintiff along with his

deceased brother Mohd.Ibrahim had become tenant of the

defendants. It was alleged that the shop in dispute had been

taken on rent for the purpose of installing a factory and a

rolling machine. Licence of the said factory had been

obtained by the plaintiff in his name and the name of his

deceased brother; electricity connection was also in their

joint names. The defendants were creating unnecessary

hindrance in the way of the plaintiff as the property prices

had escalated. The defendants had even refused to accept

rent from the plaintiff; he was constrained to move an

application under Section 27 of the Delhi Rent Control Act

(hereinafter referred to as „the Rent Act‟) to deposit the

arrears of rent. On 9.3.1983, the defendants had prevented

the plaintiff from installing a new machine in the disputed

premises. The present suit was accordingly filed.

(ii) Defendants have contested the suit proceeding. It is

stated that there is no privity of contract of the defendant

with the plaintiff; Mohd. Ibrahim, the deceased brother of the

plaintiff was a tenant under the defendants and not the

plaintiff. Even otherwise, Mohd.Ibrahim was in arrears of

rent and it was only after repeated notices sent to him that

he had complied and made the payment of rent; these rents

had been tendered by Mohd.Ibrahim alone in his individual

capacity.

(iii) Trial Judge had framed three issues. Issue no.1 was

the crucial issue. The Trial Judge on the basis documentary

evidence led by the parties had held that the plaintiff is not a

tenant in the suit property; Ex.PW-1/C dated 15.5.1952

proved by the plaintiff, a document in urdu was not relied

upon; it was held that the executant Hari Ram had signed the

sale deed Ex.DW-1/1 in english and a person who was

conversant with the english language would not have signed

Ex.PW-1/C in urdu. The subsequent documents i.e. Ex.PW-

1/D which was the licence issued by the MCD and the

electricity connections Ex.PW-1/E and Ex.PW-1/F were follow

ups of Ex.PW-1/C. The plaintiff not being a tenant of the suit

property he was not entitled to any relief. Suit was

dismissed.

(iv) The Appellate Court vide judgment dated 21.9.1994

had reversed the finding of the Trial Judge. It was held that

the plaintiff is a tenant of the defendants and he is entitled to

the relief as claimed by him. The rent receipt Ex.PW-1/C

dated 15.5.1952 issued to the plaintiff evidencing the

payment of rent by the plaintiff Abdul Majid along with

Mohd.Ibrahim to the erstwhile landlord Hari Ram had been

accepted; the licence of the MCD authorizing both the

brothers including the plaintiff to run the factory in the

disputed premises as also the survey report of the year 1957

clearly indicated that the plaintiff Abdul Majid was also in

occupation of the suit premises as a tenant. First Appellate

Court held the plaintiff to be a co-joint tenant along with his

deceased brother of the defendants; suit of the plaintiff was

decreed.

3. On 23.11.1994, the following substantial question of law had

been formulated:

1. Whether the finding of the First Appellate Court is not based on conjunctures and certain assumptions in respect of genuineness of documents and their effect and in respect of inferences which legally arise for non-production of certain documents by parties as noticed above and also the effect of having adopted a course of conduct for a period of about 25 years in regarding only Mohd.Ibrahim on record as tenant.

2. Whether the genuineness of document which, although it comes from official records, can be assumed when the tenant, in whose favour the documents was allegedly issued and who appears in the witness box stated nothing about it, in his evidence.

4. On behalf of the appellant/defendant, it has been submitted

that the impugned findings of the First Appellate Court are

perverse and calls for an interference by this Court. Attention has

been drawn to the document of title of the suit property i.e. the

sale deed Ex.DW-1/1 dated 25.2.1970 executed by Hari Ram in

favour of the present appellants. Along with the sale deed

attention has been drawn to the schedule annexed thereto wherein

the names of the tenants occupying properties of Hari Ram had

been detailed; name of Mohd.Ibrahim finds mention at serial no.19.

It is submitted that on 25.2.1970 it had been certified that it was

Mohd.Ibrahim alone who was the tenant of the new owner i.e.

Harbhagwan and Prabh Dayal. Attention has also been drawn to

the signatures of executant/vendor i.e. Hari Ram who had signed

on all the pages of Ex.DW-1/1 in english. Attention has also been

drawn to the notices which had been sent by the appellants to

Mohd. Ibrahim dated 16.2.1971 (Ex.DW-1/4), 27.1.1974 (Ex.DW-

1/5) and another notice dated 5.6.1982 (Ex.DW-1/6). It is

submitted that all these notices had been addressed to Mohd.

Ibrahim and Mohd.Ibrahim had tendered rent by way of money

order which were all money orders sent exclusively by

Mohd.Ibrahim himself i.e. Ex.DW-1/2 and Ex.DW-1/3. It is

submitted that if Abdul Majid was also a co-tenant along with his

deceased brother nothing prevented him from joining hands with

his brother to clear these arrears of rent. Attention has also been

drawn to Ex.PW-1/B dated 13.2.1974 which is a rent receipt issued

by the defendants and the counterfoil of which had been signed by

Mohd.Ibrahim alone. Attention has also been drawn to Mark A and

Mark B dated 7.1.1977 and 6.4.1981 which had been confronted to

PW-1 Abdul Majid who had admitted that these counterfoils of rent

receipts also bear the signatures of his deceased brother Mohd.

Ibrahim. It is submitted that all these documents clearly show that

it was Mohd. Ibrahim alone who was a tenant in the suit property.

Attention has also been drawn to Ex.DW-1/16 which was a

communication sent by nine other co-tenants of Mohd.Ibrahim

informing the defendants that they were troubled by the acts of

Abdul Majid; it is submitted that even in Ex.DW-1/16,

Mohd.Ibrahim alone had been described as a tenant. The survey

reports proved through the version of DW-2 also show that for the

year 1954,1961,1971 Mohd.Ibrahim alone was the tenant in the

suit property. Impugned judgment has recorded perverse findings

which calls for an interference even at the second appellate stage.

5. Learned counsel for the appellant has placed reliance upon

a judgment reported in IV(2010) SLT 419 S.C.Bharatha Matha &

Anr. Vs. Vijay Renganathan & Ors. to support his submission that

the High Court can interfere with the finding of fact even at the

time of a second appeal if the findings are perverse. It is submitted

that in AIR 1971 SC 1049 Radha Nath Seal Vs. Haripada Jana &

Ors. where the first Appellate Court had failed to consider material

evidence which was in the form of a document, interference by the

second Appellate Court was called for. Reliance has also been

placed upon AIR 1993 SC 398 Shri Bhagwan Sharma Vs. Smt. Bani

Ghosh. It is submitted that while considering the scope of the

powers of the second Appellate Court, it was held that High Court

must hear the parties fully with reference to the entire evidence on

record relevant to the issue in question; conclusion cannot be pre-

judged. For the same proposition reliance has also been placed

upon AIR 1994 SC 532 Sundra Nicka Vadiyar Vs. Ramaswami

Ayyar where crucial documents which were vital for deciding the

question of possession between the parties had been overlooked; it

was held that there was an infirmity in the finding of the Courts

below which calls for interference in a second appeal.

6. Arguments have been countered by the learned counsel for

the respondent. It is submitted that the impugned judgment calls

for no interference. Attention has been drawn to the receipt

Ex.PW-1/C dated 15.5.1952 relied upon by the first Appellate Court

to draw the conclusion that Abdul Majid was a tenant along with

his brother Mohd.Ibrahim; Ex.PW-1/C had been executed by the

erstwhile landlord Hari Ram in favour of both the said persons.

Attention has also been drawn to Ex.PW-1/D which was the licence

granted by the MCD in the name of both the brothers Abdul Majid

and Mohd.Ibrahim to run a factory at the disputed premises;

Ex.PW-1/E and Ex.PW-1/F were the electricity connections which

have been granted in their joint names. It is submitted that vide

Ex.PW-1/17 Abdul Majid had deposited the arrears of rent in favour

of the defendants vide his application under Section 27 of the Rent

Act; this entire documentary evidence clearly establishes the status

of the plaintiff as a tenant in the suit property.

7. The jurisdiction of this Court to interfere with the findings of

fact is circumscribed under Section 100 of the Code of Civil

Procedure (hereinafter referred to as „the Code‟), fact findings

given by the fact finding Courts which is the Trial Court and the

first Appellate Court cannot be interfered with at the level of the

second Appellate Court unless the findings of the Courts below are

perverse. Reasons for arriving at a finding that such findings are

perverse have to be given by the second Appellate Court. In

I (1999) SLT 10 Kuldeep Singh Vs. Commissioner of Police & Ors.

Supreme Court had held that if a decision is arrived at on no

evidence or evidence which is thoroughly unreliable and no

reasonable person would act upon it, the order would be perverse.

8. In the case of Shri Bhagwan Sharma (supra) the observations

of the Supreme Court, relevant to decide this appeal are extracted

herein below and read as follows:-

"The High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the first appellate court which was the final court of fact were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature. But, after setting aside the findings of fact on that ground the Court had either to remand the matter to the first appellate court for re- hearing of the first appeal and decision in accordance with law after taking into consideration the entire relevant evidence on the records, or in the alternative to decide the case finally in accordance with the provisions of Section 103(b) of the Code of Civil Procedure which reads as follows:-

"103. Power of High Court to determine issue of fact.

In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,-

(a)...................

(b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100."

If in an appropriate case the High Court decides to follow the second course, it must bear the parties fully with reference to the entire evidence on the records relevant to the issue in question and this is possible if only a proper paper book is prepared for hearing of facts and notice is given to the parties. The grounds which may be available in support of a plea that the finding of fact by the court below is vitiated in law, does not by itself lead to the further conclusion that a contrary finding has to be finally arrived at on the disputed issue. On a reappraisal of the entire evidence the ultimate conclusion may go in favour of either party and it cannot be prejudged, as has been done in the impugned judgment.

It is on these parameters that the arguments of the

respective parties have to be judged.

9. The documents of title of the suit property i.e. the sale deed

Ex.DW-1/1 is dated 25.2.1970. By this document defendants

Harbhagwan and Prabh Dayal had become owners of the suit

property; they had purchased it from Hari Ram. Hari Ram had

been described as a vendor. This documents runs into 15 pages of

which 13 pages are the text of the document and two pages are the

annexures. On each page the vendor and the vendee have

appended their signatures. Hari Ram had signed all the said pages

in english. The schedule contains a list of the tenants. At serial

no.19 name of Mohd.Ibrahim had been mentioned. Rate of rent

had been recorded as Rs.16.88. At serial no.16 names of two

persons had been mentioned in the category of tenants. It is

relevant to state that at serial no.19 name of Mohd. Ibrahim alone

had been mentioned; there is no mention of Abdul Majid. This

document is an admitted document. There is no dispute to this

document. Ex. PW-1/4 is dated 16.2.1971. This is a document

which had been addressed on behalf of the defendant to

Mohd.Ibrahim bringing to his notice that he has not tendered rent

from 1.8.1970 to 31.1.1971. Rent was paid thereafter by

Mohd.Ibrahim. Ex.DW-1/5 is another notice dated 27.1.1974

addressed to Mohd.Ibrahim bringing to his notice that he is in

arrears of rent for a subsequent period. Ex.DW-1/6 is yet another

notice dated 5.6.1982 again addressed to Mohd.Ibrahim pointing

out that he is in arrears of rent; all these arrears had been cleared

by money orders Ex.DW-1/2 and Ex.DW-1/3 all send by

Mohd.Ibrahim alone. Ex.PW-1/B is the counterfoil of a receipt

dated 13.2.1974 issued by the defendants again signed singly by

Mohd.Ibrahim.

10. Ex.PW-1/C was the crucial document on which the claim of

the plaintiff had been addressed and formed the basis and

foundation of his case to establish his claim to the tenancy of the

suit property. Ex.PW-1/C is dated 15.5.1952. It is perused; the

entire document is in urdu. It purports to be a receipt issued by

Hari Ram in favour of Mohd.Ibrahim and Abdul Majid. As per the

version of PW-1, the plaintiff, this document had been signed by

Hari Ram in his presence. This document had been exhibited in

the testimony of PW-1; PW-1 had identified the signatures of Hari

Ram at mark B. In his cross-examination PW-1 had denied the

suggestion that Hari Ram did not know urdu and that he knew

english alone and he used to sign in engilsh. It is relevant to state

that in the written statement the appellant/defendant had taken a

specific plea that he does not have any privity of contract with the

plaintiff as Mohd.Ibrahim was a tenant alone and not Abdul Majid.

In the replication, there was a simple denial, there is no mention of

the document Ex.PW-1/C dated 15.5.1952 having been executed by

Hari Ram in favour of the plaintiff to substantiate his tenancy.

11. The submission of the learned counsel for the appellant is

that this document is a forged document; it is single receipt; the

bottom line on the document itself clearly recites that BINA

RASEED KE KOI SANAD NAA MAANI JAAYEGI. It is submitted

that in this view of the matter it is clear that every time the rent

was tendered by the tenant a rent receipt was issued by Hari Ram;

the plaintiff had chosen to produce only one such rent receipt in his

entire tenancy tenure since 1952 (as alleged) which goes against

the very tenet of this document. There is no force in this

contention of the appellant. Hari Ram had admittedly signed on

the sale deed along with its annexures on all pages in the english

language. A specific suggestion has been given to PW-1 by the

learned defence counsel that Hari Ram only knows the english

language and he is not conversant with urdu. It is but strange that

a person who is conversant and signing in the english language

would have signed another document in urdu; normal trend,

conduct and human nature suggests that a person would continue

to sign in the same language whether it be document A or

document B; he would not change the language of his signature for

different documents.

12. Ex.PW-1/B is also a rent receipt signed by Mohd.Ibrahim

alone. The money orders Ex.DW-1/2 and Ex.DW-1/3 also evidence

rent having been paid by Mohd.Ibrahim alone. The Trial Court had

rightly drawn a fact finding conclusion that there is no authenticity

in the rent receipt Ex.PW-1/C which was discarded. The first

Appellate Court had reversed the finding of the Trial Judge only on

the basis of Ex.PW-1/C; further the survey report of the year 1957

had only indicated that Abdul Majid was an occupant of the

premises; it did not in any manner establish a tenancy. Occupancy

and tenancy are both distinct; whereas the former would not create

any legal right but the latter had legal implications.

13. Findings in the impugned judgment are perverse. Vital

document had been ignored; findings in the impugned judgment

that the plaintiff was a tenant are accordingly set aside. The result

is the suit of the plaintiff is dismissed.

14. Appeal is allowed in the aforenoted terms.

INDERMEET KAUR, J.

AUGUST 19, 2010 nandan