Narayan Giri vs Chironjilal (Dead) Through ...
2023 Latest Caselaw 3943 MP

                                   1              SECOND APPEAL No. 2235 of 2022
                            IN THE HIGH COURT OF MADHYA PRADESH

                                            AT G WA L I O R
                                                  BEFORE
                                   HON'BLE SMT. JUSTICE SUNITA YADAV

                                        ON THE 14th OF MARCH, 2023

                                       SECOND APPEAL No. 2235 of 2022

                           BETWEEN:-
                              NARAYAN GIRI S/O SHRI SHANKAR GIRI
                              GOSWAMI, AGED ABOUT 62 YEARS, R/O
                           1.
                              NEAR BHAVSAR KUAN, BARETH ROAD
                              GANJ BASODA (MADHYA PRADESH)
                              SMT SHASHI GOSWAMI W/O SHRI
                              NARAYAN GIRI, AGED ABOUT 49 YEARS,
                           2. R/O NEAR BHAVSAR KUAN, BARETH
                              ROAD, GANJ BASODA, VIDISHA (MADHYA
                              PRADESH)
                                                                     .....APPELLANTS
                           (BY MR. ABHISEHK SINGH BHADAURIA - ADVOCATE)

                           AND
                              CHIRONJILAL     (DEAD)     THROUGH
                              LRSPRAKASH     S/O     LATE     SHRI
                           1. CHIRONJILAL BHAVSAR, AGED ABOUT 68
                              YEARS, R/O TEH GANJ BASODA DISTT
                              VIDISHA (MADHYA PRADESH)
                           2. CHIRONJILAL (DEAD) THROUGH LRS (2).
                              VIJAY S/O LATE SHRI CHIRONJILAL
                              BHAVSAR, AGED ABOUT 63 YEARS, TEHSIL
                              GANJ   BASODA,   VIDISHA   (MADHYA




Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 3/17/2023
6:01:36 PM
                                      2                  SECOND APPEAL No. 2235 of 2022
                              PRADESH)
                              CHIRONJILAL (DEAD) THROUGH LRS (3).
                              SMT SAROJ W/O SHRI NARENDRA
                           3. BHAVSAR, AGED ABOUT 66 YEARS, MOTI
                              BUNGLAW, DEWAS, DISTRICT DEWAS
                              (MADHYA PRADESH)
                              CHIRONJILAL (DEAD) THROUGH LRS (4).
                              SMT KUSUM BAI W/O RAMESH CHANDRA
                           4.
                              BHASAR MASTER COLONY, SHAJAPUR,
                              DISTRICT SHAJAPUR (MADHYA PRADESH)
                                                                           .....RESPONDENTS
                                 This appeal coming on for Admission this day, the court

                           passed the following:

                                                    JUDGMENT

Present second appeal under Section 100 of CPC has been

filed against the judgment and decree dated 03.08.2022 passed by

Ist District Judge, Ganjbasoda, District Vidisha (M.P.) in Civil

Appeal No. RCA/28/2021 affirming the judgment and decree dated

23.11.2019 passed by the Additional Judge, Ganj Basoda, District

Vidisha to the Court of Civil Judge, Class-I, Basoda, District

Vidisha in Civil Suit No.59-A/2012.

2. Factual matrix of the case are in brief are that one Chironjilal

Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 3/17/2023 6:01:36 PM

(since dead) had instituted a suit for eviction and arrears of rent

with regard to Suit house situated in Ward No.6, near Bhavsal

Kuan, Bareth Road, Ganj Basoda, as described in the map annexed

along with the plaint. After the death of Chironjilal present

respondents were substituted as plaintiffs being legal

representatives of Chironjilal. It is alleged in the plaint that the suit

house is 50 years old and is in dilapidated condition.

Appellants/defendants are tenants since 15 years @ Rs.500/- rent

p.m. and have not deposited rent since 2007. It is also alleged that

the suit house is not fit for residence and needs repairing work. On

interalia contentions the suit was filed for eviction and arrears of

rent.

3. Defendants/appellants appeared before the learned trial Court

and filed their written statement denying the plaint allegations and

contended that the plaintiffs were not the owner of the suit house

and they executed an agreement to sell dated 01.01.2004 with the

defendants for consideration of Rs.1,00,000/- which was to be

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deposited in installments, but on the contrary, plaintiffs did not

execute the sale deed in favour of defendants, in such

circumstances, defendants were constrained to file a civil suit for

specific performance which was registered as Civil Suit No. 73-

A/2012 and was dismissed by Additional District Judge. Against

which, first appeal is pending before this Court.

4. It is further contended that appellants/defendants were tenants

but there are no arrears on their part and the suit house is fit to live

in and defendants' family is residing in the house. It is further

pleaded that previously defendants instituted a suit for injunction

against the plaintiff when he tried to dismantle the suit house which

after hearing both the parties was decreed vide judgment and decree

dated 30.06.2011 and injunction was granted. On interalia

contentions the suit was prayed to be dismissed.

5. On the basis of pleadings, learned trial Court framed as may

as six issues and recorded evidence led by both the parties. After

hearing arguments and having considered the legal position, learned

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trial Court dismissed the suit vide its judgment and decree dated

23.11.2019. Against the said judgment and decree dated 23.11.2019,

the defendants/appellants preferred a civil appeal before the first

appellate Court. Learned first Appellate Court heard the arguments

and contrary to law dismissed the appeal and affirmed the judgment

and decree passed by the learned trial Court vide its judgment and

decree dated 03.08.2022, against which, present second appeal has

been filed before this Court.

6. Learned counsel for the appellants argued that suit and decree

passed by the Courts below are manifest illegal, contrary to law and

record and are also against the well settled principles of law,

therefore, are liable to be set aside.It is further argued that learned

Courts below have erred in decreeing the suit with respect to the

suit house. The learned Courts below have not cared to consider

that there has been not even a single piece of evidence regarding

existence of landlord and tenant relationship subsequent to date of

agreement of the appellant with father of plaintiffs. The learned

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Courts below have erred in decreeing the suit of plaintiffs merely on

the basis of dismissal of the suit filed by the defendants. The

learned Courts below have erred in not relying upon the factum of

agreement to sell in favour of defendants contrary to the evidence

of plaintiffs. The further submission is that the learned Courts

below have also not considered the fact that landlord tenant

relationship between the plaintiffs and defendants on the date of

filing of suit has not been proved by the plaintiffs. Therefore, the

judgment and decree passed by the Courts below and the findings

recorded therein being based on non-consideration of evidence and

pleadings and being based on wrong assumptions and contrary to

Order XLI Rule 31 and Order XX Rule 5 of CPC are not

sustainable, therefore, present appeal be allowed by setting aside

the impugned judgments and decree passed by the Courts below.

7. The appellants have filed I.A. No. 1292 of 2023, an

application under Order XLI Rule 27 of CPC and I,A. No. 1289/23,

an application U/s 100(5) of CPC for formulation of substantial

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questions of law during the pendency of this appeal. Heard the

counsel for appellants on admission as well as on above

applications.

8. I.A. No. 1292 of 2023, an application under Order XLI Rule

27 of CPC is filed for taking the certified copy of statement of some

Vijay Kumar recorded in Case No.-168/10-A before Additional

District Judge Ganj Basoda. However, the the above document is a

photocopy. The appellants have failed to show that notwithstanding

the exercise of due diligence, such evidence was not within their

knowledge or could not, after the exercise of due diligence, be

produced by him at the time when the decree appealed against was

passed. The said document is also not required to enable this court

to pronounce judgment. Therefore, I.A. No. 1292 of 2023 is hereby

dismissed.

9. The perusal of record reveals that the learned trial Court,

upon due appreciation of evidence on record, recorded the findings

that the plaintiffs have successfully proved that there exists the

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relationship of landlord and tenant between the

respondents/plaintiffs and the defendants. The learned trial Court

also found it to be proved that the disputed premises is in a

dilapidated state and cannot be repaired without eviction of

appellants/defendants. The learned trial Court also recorded the

findings that appellants/defendants have not paid the rent since the

year 2007.

10. The Apex Court in the case of Paras Nath Thakur v.

Smt.Mohani Dasi (Deceased) & Ors. [AIR 1959 SC 1204] held:-

"It is a well settled by a long series of decisions of the Judicial Committee of the Privy Council and of this Court, that a High Cour,t on second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the courts of fact may be. To the same effect are the judgments reported in Sri Sinha Ramanuja Jeer Swamigal v. Sri Ranga Ramanuja Jeer alias Emberumanar Jeer & Ors. [AIR 1961 SC 1720], V.Ramachandra Ayyar & Anr. v. Ramalingam Chettiar & Anr.[AIR 1963 SC 302] and Madamanchi Ramappa & Anr. v. Muthaluru Bojjappa [AIR 1963 SC 1633]."

11. In the case of Kondiba Dagadu Kadam v. Savitribai Sopan

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Gujar & Ors. [JT 1999 (3) SC 163], wherein the Apex Court

again considered this aspect of the matter and held:-

"If the question of law termed as substantial question stands already decided by a large bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal."

12. In Reserve Bank of India & Anr. v. Ramakrishna Govind

Morey, (AIR 1976 SC(830) it is held that whether trial court

should not have exercised its jurisdiction differently is not a

question of law justifying interference."

Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 3/17/2023 6:01:36 PM

13. Keeping in mind the above principles of law after going

through and having gone through the judgments passed by the

learned courts below, it is apparent that the learned trial Court on

the basis of admissions made by the defendants and appreciation of

oral as well as the documentary evidence decreed the suit in favour

of the respondents/plaintiffs. The learned trial court has observed

that the defendants had failed to proved in earlier civil suit that any

agreement to sale in respect to disputed premises was executed

between the parties and any consideration was given to the plaintiff

and, therefore, the earlier suit was dismissed. The learned trial court

has also observed that the defendants have not filed any

documentary evidence to prove that the rent was paid by them, and

during the pendency of civil suit the defendants have not deposited

the rent, and therefore, their right to defend was also terminated.

The learned trial court has also discussed in detail the unchallenged

evidence of the plaintiffs and admissions made by the defendants on

the issues framed in respect to the grounds taken for the eviction

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while decreeing the suit.

14. The First Appellate Court reconsidered the entire evidence

and discussed the same for its judgment from para 9 to 34 and

found that no illegality has been committed by the learned trial

Court while allowing the suit.

15. Upon perusal of the judgment and decree of the Courts below

and the arguments advanced, the appeal is found to be devoid of

any substance because in the opinion of this court, entire gamut of

the matter is in the realm of facts of the case. Both the Courts below

have recorded impeccable findings based on proper appreciation of

evidence on record. No question of law much less substantial

question of law arises warranting interference under Section 100 of

CPC.

16. Consequently, this second appeal sans merit and is hereby

dismissed at admission stage.

17. In view of the fact that this second appeal stood dismissed on

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merit in limine, therefore, I,A. No. 1289/23, an application under

Section 100(5) of CPC for formulation of substantial questions of

law also stands dismissed.

(Sunita Yadav) Judge LJ*

Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 3/17/2023 6:01:36 PM