Tikam Chand vs Swami Vaidh Ramprakash Thr Lrs
2022 Latest Caselaw 3074 Raj/2

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                  S.B. Civil Second Appeal No. 816/2017
Tikam Chand S/o Shri Vednidhi Chaturvedi, R/o Plot No. 2,
Himmat Nagar, Tonk Road, Jaipur And Original Address -
Resident Of House No. 4317, Teesri Manjil, Kundigar Bhairu Ka
Rasta, Chaukari Ghatgate, Jaipur
                                                                       ----Appellant
                                      Versus
1.        Swami Vaidh Ramprakash Shishya Swami Jairamdas, R/o
          Nathmal Ji Ka Chauk, Chaukari Ghatgate, Jaipur (Died
          During Pendency Of The Suit)
          1/1. Swami Bhajandas Shishya Bhajandas, R/o Phulera
          Presently Residing At Laxmiram Bhawan, Nathmal Ji Ka
          Chauk, Chaukari Ghatgate, Jaipur Died During Pendency
          Of The Appeal
          1/1/1. Swami Janakraj Shishya Swami Bhajandas, R/o
          Laxmiram Bhawan, Nathmal Ji Ka Chauk, Chaukari
          Ghatgate, Jaipur
                                                                    ----Respondents

For Appellant(s)            :     Mr. Alok Chaturvedi
                                  Mr. Shailendra Sharma
For Respondent(s)           :     Mr. Ajeet Kumar Bhandari, Sr.
                                  Advocate assisted by Mr. Jitendra
                                  Mishra &
                                  Mr. Jain Sharma


              HON'BLE MR. JUSTICE SUDESH BANSAL
                             Order

12/04/2022

        The   appellant-defendant          has      filed    this    second    appeal

assailing the judgment and decree dated 20.01.2017 passed in Civil Suit No.222/2016 (54/2000), which has been affirmed in the First Appeal No.47/17 vide judgment and decree dated 22.09.2017 passed by Additional District Judge No.10, Ajmer.

During the course of argument, this Court asked the counsel for appellant to seek instructions from the appellant to grant some reasonable time to vacate the rented premise, however the

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counsel for appellant declined to grant time and wanted to argue the matter on merits.

The rented premise comprising a room, kitchen, tin shed portion with open roof as described in the plaint, situated in House No.4317, third floor, Kundigar Bhairu ka Rasta, Chaukari Ghatgat, Jaipur.

As per the plaint, the defendant is tenant in the rented premise since 01.01.1983 at the rate of Rs.41/- per month. Though on the contrary, the defendant-tenant claims his tenancy from 1961 in the rented premise.

The relevant facts, as culled out from the record, are that respondent-plaintiff instituted civil suit for eviction on the ground of default, non user of the rented premise and acquired the alternative accommodation by the defendant-tenant invoking the provisions of Section 13(1) (a), (i) and (J) of the Rajasthan Premise (Control of rent and Eviction) Act, 1950 (hereafter referred 'the Act of 1950').

The appellant-tenant submitted written statement and admitted himself to be tenant, however, raised objections about the authority of the plaintiff to institute the eviction suit and disputed the ground of default, non user and acquired alternative accommodation.

On rival pleadings of both parties, the trial court settled issues. The plaintiff adduced oral and documentary evidence. The defendant himself did not appear to make his statement and from the side of plaintiffs three witnesses got recorded their statements. On appreciation of pleadings and evidence, the trial court recorded finding that plaintiff has have right to institute the present civil suit for eviction. The relationship of landlord and tenant between the parties was not in dispute and as such the civil suit instituted by plaintiff was found well within his right.

It has been observed by the trial court that a private registered trust was created by Swami Laxmiram including the rented premises in the name of Swami Laxmiram Trust. In the trust deed reference of the rented premise was mentioned. Later on the Chief Trustee appointed the another trustee through his Will and by chain of document, finally the authorization was

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assigned to the plaintiff Swami Vaidh Ramprakash. It has also come on record that during the course of trial, the original plaintiff Swami Vaidh Ramprakash was passed away and through his Will his disciple Swami Bhajandas and now in turn the next disciple Swami Janakraj has been substituted. The trial court, on appreciation of such documentary evidence and statements of both parties, decided issue No.1 in favour of plaintiff holding that he is authorize to institute civil suit for eviction to evict the defendant-tenant.

The issue of default was also considered, as per the evidence available on record, the trial court provisionally determined the rent under Section 13(3) of the Act of 1950. Defendant-tenant was found to pay the provisional rent during the course of trial. The trial court found that the defendant-tenant has committed default in payment of rent from 01.04.1998 onwards and till institution of the suit, which is more than six months. While declaring the defendant-tenant as defaulter, the trial court extended the benefit of first default since defendant-tenant complied with the order of provisional determination.

The other issues in relation to non user of rented premise and acquiring alternative accommodation to the defendant-tenant, it was observed by the trial court that defendant himself has not appeared in the witness box, which leads to an adverse inference against him.

Section 13(1)(i) of the Act of 1950 provides a ground, if a tenant had acquired vacant possession of a suitable residence, the tenant has been allotted a suitable residence. If any of these situations is complete, the tenant is liable to eviction. The defendant was found to be acquired another plot No.2, Himmat Nagar, Tonk Road, Jaipur, where he was said to reside. Since the defendant-tenant found to allot acquired the alternative and suitable accommodation of plot No.2, Himmat Nagar, Tonk Road, Jaipur, the trial court granted decree for eviction of this ground.

Further, Section 13(1)(j) of the Act of 1950 provides a ground that if the rented premises have not been used without reasonable cause for the purpose for which they were let for continuation of six months immediately preceding the date of suit

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is a ground for eviction. By the statements of P.W.1 and P.W.2, it was observed that the rented premise is lying closed. In the present case, the trial court found that the rented premises is not being used continuously for a period of six months prior to institution of the present suit that too without any reasonable cause. The defendant-tenant did not produce any evidence of the consumption of electricity and water bills to show the use of rented premises. Rather defendant-tenant himself did not appear to controvert plaintiffs' evidence. In such factual scenario, the trial court concluded that the ground of non-user to the rented premises stand proved and as such passed the decree for eviction on this ground.

The defendant-tenant filed first appeal challenging the findings of trial court and decree for eviction. The first appellate court, re-heard the entire matter and re-appreciate pleadings and evidence of both parties. The first appellate court decided all issues afresh taking into consideration of the findings of the trial court, after appreciation of evidence on record. The first appellate court, while affirming findings of fact of the trial court that there is sufficient evidence on record to grant a decree for eviction on the ground of non-user of the rented premise and acquiring the alternative accommodation to the defendant-tenant, there are reasons to draw an adverse inference against the defendant- tenant. The appellate court placed reliance on the judgment of Hon'ble the Supreme Court in the case of Vidhyadhar Vs. Manikrao and Anr. (1999) 3 SCC 573.

The first appellate court also considered the fact that the trust is a private trust, hence the objection of the defendant- tenant that the suit has not been instituted by the trust is not maintainable. The appellate court also found that the plaintiff is authorize to institute the eviction suit. Thus, the appellate court affirmed findings of fact of the trial court after exercising its jurisdiction as warranted under Order 41 Rule 33 CPC.

Having heard learned counsel for both parties, this Court finds that two courts below have duly appreciated pleadings, evidence and material available on record, have concurrently held that the grounds of non-user of the rented premise and acquiring

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the alternative accommodation to the defendant-tenant are proved. In the present case, the issue of non-user of the rented premise and acquiring alternative accommodation by the defendant-tenant are solely based on the factual aspect and involved no substantial question of law. Counsel for appellant could not point out any perversity in the impugned judgments. The substantial questions of law as proposed and suggested by counsel for appellant in the memo of appeal are not question of law much less substantial questions of law, as the same are wholly dependent of the appreciation on re-appreciation of the evidence. The Hon'ble Supreme Court in the case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar (1999) 3 SCC 722 and Damodar Lal Vs. Sohan Devi (2016) 3 SCC 78 has held that once finding of fact is province of the trial court and the first appellate court, the same do not suffer from any infirmity, illegality or perversity, does not require to be interfered in the second appeal within the scope of Section 100 CPC. Since there is no infirmity, illegality and perversity in findings of facts, so as to give rise as substantial question of law, this Court is not inclined to interfere with the same. It is a trite law that in absence of substantial question of law, this second appeal cannot be entertained, hence the second appeal stands dismissed.

However, since the defendant-tenant is in possession of the rented premise since long, he is granted three months' time to vacate and hand over the peaceful possession of the rented premise to respondents on condition of depositing the arrears of rent/mesne profits and the regular rent up to the handing over the possession, if any.

The stay application and any other pending application, if any, stand(s) disposed of.

(SUDESH BANSAL),J

TN/1

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