Dinesh Gupta vs Rajkumari Sahu
2021 Latest Caselaw 8364 MP

                                  1                                SA-896-2021
        The High Court Of Madhya Pradesh
                  SA No. 896 of 2021
                  (DINESH GUPTA Vs RAJKUMARI SAHU AND OTHERS)


Jabalpur, Dated : 07-12-2021
      Shri Z.M. Shah, learned counsel for the appellant.

      Shri Satyam Agrawal, learned counsel for respondent No.1 on caveat.

This appeal has been filed by the appellant/defendant under Section 100 of the Code of Civil Procedure assailing the judgment and decree granted by the Courts below on the ground of 12(1)(f) of the M.P. Accommodation

Control Act, 1961 (for brevity the 'Act, 1961').

2. Learned counsel for the appellant is challenging the finding of the Courts below solely on the ground that the plaintiff/respondent No.1 failed to prove his ownership in an appropriate manner despite the fact that said issue has been framed by the trial Court. He submits that the plaintiff/respondent No.1 is claiming her title over the suit premises by virtue of Will but that Will has not been proved by her as per Section 65 of the Indian Evidence Act, 1872 (in short the 'Evidence Act') and therefore, it cannot be said that the plaintiff/respondent No.1 is the owner of the suit

premises and decree granted under Section 12(1)(f) of the Act, 1961 is liable to be set aside. The counsel for the appellant relying upon the judgment reported in 2002(2) M.P.H.T. 232 (SC) parties being Sheela and others Vs. Firm Prahlad Rai Prem Prakash submits that the plaintiff/respondent No.1 has no bona fide need of the suit premises and therefore, the decree granted by both the Courts below are liable to be set aside.

3. I have perused the judgment and decree of the trial Court as well as that of appellate Court. The trial Court has framed as many as 11 issues. Issue No.11 relates to title of the plaintiff/respondent No.1 over the suit premises. The trial Court in its judgment elaborately considered this aspect and has observed that on the basis of Will, the name of the land-owner got mutated and that mutation was never challenged by any of the parties and that was continued till the decree is passed. The trial Court has given finding 2 SA-896-2021 that the plaintiff/respondent No.1 was the owner of the suit premises as by virtue of succession he acquired the title over the suit premises. This finding was further assailed by filing an appeal under Section 96 of the CPC by the appellant/defendant and the appellate Court has reiterated the said finding, approved the same and also held that the plaintiff/respondent No.1 has

successfully proved her title and has found that the judgment of the trial Court and finding given thereof are on the basis of evidence adduced by the plaintiff/respondent No.1 and after appreciation of the evidence available and as such, the appeal was dismissed holding that there is no substance in the submission made by the appellant/defendant (tenant) and the finding given by the trial Court is not required to be disturbed.

4. In a second appeal scope of interference is very limited when concurrent findings are there and unless any substantial question of law is involved, the appeal cannot be entertained.

5. The sole question raised by the learned counsel for the appellant is with regard to factum of title on the ground that the same has not been proved properly and the Will which was although a registered Will but the plaintiff/respondent No.1 has not proved the same as per the requirement of Section 65 of the Evidence Act.

6. Considering the above, since the findings given by both the Courts below are concurrent finding of facts and during the course of arguments, the learned counsel for the appellant has failed to establish any perversity in the judgment and decree passed by both the Courts below and considering the law laid down by the Supreme Court consistently holding that the jurisdiction of this Court to interfere with the finding of fact under Section 100 of the Code of Civil Procedure is very limited until the finding is either perverse or based on no evidence, this Court cannot interfere with the concurrent finding of fact until and unless the same is perverse or contrary to material on record. [See: Sugani (mst.) v. Rameshwar Das (2006) 11 SCC 587, Gurdev Kaur vs. Kaki (2007) 1 SCC 546, Prakash Kumar v.

                                      3                                SA-896-2021
State        of   Gujrat   (2004)    5   SCC     140,    Thiagarajan     v.   Sri

Venugopalaswamy B. Koil (2004) 5 SCC 762 and Narayanan Rajendran v. Lekshmy Sarojini (2009) 5 SCC 264].

7. It is equally well settled that this Court in exercise of power under Section 100 of the Code of Civil Procedure cannot reappreciate evidence. [See: Thimmaiah v. Ningamma (2000) 7 SCC 409]. Further, where on appreciation of evidence, even if two views are possible, this Court in exercise of powers under Section 100 of the Code of Civil Procedure would not interfere. [See: Kondiba Dagadu Kadam v. Savitribai Sopan Guzar (1999) 3 SCC 722 and Veerayee Ammal v. Seeni Ammal (2002) 1 SCC 134]. It has also been held by the Supreme Court that interference

with a question of fact is not permissible. [See: Basayya I. Mathad v. Rudrayya S. Mathad (2008) 3 SCC 120]. In S. Appadurai Nadar v. A. Chokalinga Nadar (2007) 12 SCC 774, it has been held by the Supreme Court that in exercise of power under Section 100 of the Code of Civil Procedure, the Courts should be slow in reversing the finding of fact. The finding of fact even if erroneous would not be disturbed in second appeal unless it is shown to be perverse and based on surmises and conjectures. [See: Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262, Hafazat Hussain v. Abdul Majeed (2001) 7 SCC 189 and Bharath Matha v. R. Vijay Rengandathan (2010) 11 SCC 483].

8. Considering the aforesaid and perusal of the judgment, I am of the opinion that there is no perversity in the finding given by both the Courts below because the trial Court as well as the appellate Court both have found that the plaintiff/respondent No.1 is the owner of the suit premises not only by virtue of Will but also by virtue of succession. Therefore, in my opinion, the findings given by both the Courts below are not liable to be disturbed and as such, this appeal does not involve any substantial question of law, accordingly, it is dismissed.

9. However, considering the fact that bona fide need is of 12(1)(f) 4 SA-896-2021 and the decree is for eviction of non-residential premises on which the defendant/tenant is running business of hardware, therefore, it would be appropriate to grant some suitable time to him to vacate the suit premises. Accordingly, six months' time is granted. The appellant is directed to handover the vacant possession of the suit premises in pursuance to the decree passed against him to the land-lord.

10. With the aforesaid, the appeal filed by the appellant is dismissed.

(SANJAY DWIVEDI) JUDGE

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ANIL CHOUDHARY 2021.12.10 10:33:55 +05'30'