Rajasthan High Court
Hukam Chand vs Basant Kumar on 25 April, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 157/2010
Hukam Chand son of Shri Bhairulal, resident of Atru, Tehsil Atru
District Baran Rajasthan.
----Appellant
Versus
Basant Kumar son of Sahib Ram, resident of Atru, Tehsil Atru,
District Baran Rajasthan.
----Respondent
For Appellant(s) : Mr. Arvind Bhardwaj
For Respondent(s) : Mr. L.L. Gupta with
Mr. Vikram Jonwal
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
25/04/2022
1. Appellant-defendant has filed this second, assailing the
judgment and decree dated 15.03.2010 passed in Civil First
Appeal No.20/2008 by the Court of Additional District Judge,
Chabra, District Baran, dismissing his first appeal and affirming
the judgment and decree dated 19.07.2008 passed in Civil Suit
No.3/1996 by the Court of Civil Judge (Junior Division), Atru,
District Baran whereby suit for eviction filed by respondent-
plaintiff has been decreed.
2. The rented premises is one wooden cabin having an area of
8X8 feet situated at Gram Panchayat, Atru, District Baran. From
perusal of record, it transpires that the said place where this
wooden cabin is situated, was allotted to respondent-plaintiff by
Gram Panchayat, Atru, who in turns, rent out the same to
appellant-defendant. Thereafter, respondent-plaintiff instituted a
civil suit for eviction way back on 09.01.1996 claiming default in
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payment of rent and termination of tenancy of defendant.
Appellant-defendant took defense that he is tenant of Gram
Panchayat, Atru, not of plaintiff. However, during course of cross-
examination in the evidence, defendant (DW1) has admitted that
he paid rent of wooden cabin to plaintiff from the year 1988-1993.
Defendant admitted his tenancy in wooden cabin with plaintiff.
Defendant admitted that before obtaining the possession of
wooden cabin, the place was allotted to plaintiff by Gram
Panchayat, Atru. Plaintiff also adduced his evidence, oral and
documentary, before the trial Court to show the allotment of place
to him by Gram Panchayat, Atru and letting out the place to
defendant. On appreciation of such evidence of plaintiff and
considering the admission of defendant in his cross-examination,
the trial Court found that defendant is tenant of plaintiff and
accordingly decreed the suit for eviction along with arrears of rent
in favour of plaintiff and against defendant vide judgment dated
19.07.2008.
3. Appellant-defendant assailed the judgment and decree dated
19.07.2008 by way of filing civil first appeal. The first Appellate
Court re-heard and re-appreciated pleadings and evidence and
affirmed findings of the trial Court. Accordingly, the first appeal
was dismissed vide judgment dated 15.03.2010. Hence, against
the concurrent findings of fact, this second appeal has been filed
assailing, decree for eviction.
4. Counsel for appellant, on the last date i.e. 19.04.2022,
during course of arguments on first appeal, sought time to seek
instructions from appellant to vacate the rented wooden cabin,
considering the old tenancy and concurrent findings by two Courts
below. However, counsel for appellant submits that appellant is
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not willing to vacate the wooden cabin and wants to contest the
second appeal on merits.
5. Counsel for appellant submits that appellant has filed an
application under Order 41 Rule 27 CPC to place certain
documents on record. A perusal of application under Order 41
Rule 27 CPC goes to show that appellant has placed on record
certain photostat copies of documents showing that such receipts
do not reflect that plaintiff deposited the license fee for the
disputed place before Gram Panchayat, Atru for the period
01.04.1991 to 31.03.1996.
6. On the basis of such documents, appellant wants to contend
that in fact the place in question was not allotted by Gram
Panchayat to plaintiff and plaintiff has no right to initiate eviction
proceedings against defendant. This Court considered the
additional documents, firstly additional documents are photostat
copies which are not admissible in evidence, prima facie.
Secondly, once defendant himself has admitted in his evidence
that he took the disputed place on rent from plaintiff wayback in
1988 and paid rent to plaintiff from 1988 to 1993, appellant is
estopped from assailing his status as tenant and challenging the
title of landlord by virtue of Section 116 of the Indian Evidence
Act, 1872. In such view, additional documents placed on record by
appellant do not render any support of his defense and are not
germane as well as material to decide the issue involved in this
second appeal. Hence, application under Order 41 Rule 27 CPC is
dismissed.
7. Having heard counsel for both parties on merits, this Court
finds that decree for eviction has been passed against appellant by
the trial Court, taking into consideration counter that he is
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defaulter in rent and his tenancy has already been terminated by
issuing a valid and lawful notice. Defendant initially took defense
that he is not tenant of plaintiff, however, could not prove his
defense, rather admitted in his evidence that he took the rented
premise on rent from plaintiff and paid rent to plaintiff for the
period 1988-1993.
8. The decree for eviction is passed on appreciation of pleadings
and evidence of both parties which has been affirmed by the first
Appellate Court. In view of concurrent findings of fact which are
based on due appreciation/re-appreciation of evidence on record,
this Court finds that there is no substantial question of law
involved in the present second appeal. Counsel for respondents
could not point out any perversity in facts findings nor could show
that such findings suffers from misreading/ non-reading of
evidence. In absence of involvement of substantial question of law
and considering the nature of impugned decree for eviction passed
in civil suit filed wayback in the year 1996. The substantial
questions of law as proposed by appellant-plaintiff are essentially
questions of fact which requires reappreciation of evidence.
Reappreciation of evidence is not permissible within scope of
Section 100 of CPC, unless and until there is some illegality or
perversity in findings of impugned judgments. None of the
question of law, falls within purview of substantial question of law.
In order to exercise the scope of Section 100 of CPC,
involvement/formulation of substantial question of law is sine qua
non. Otherwise also, it is a case of concurrent findings of facts
even if erroneous cannot be disturbed in exercise of powers under
Section 100 CPC as has been held in case of Kondiba Dagadu
Kadam Vs. Savitribai Sopan Gujar [(1999) 3 SCC 722] and
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catena of other judgments passed in case of Pakeerappa Rai Vs.
Seethamma Hengsu & Ors., [(2001) 9 SCC 521],
Thulasidhara & Anr. Vs. Narayanappa & Ors., [(2019) 6 SCC
409], Bholaram Vs. Ameerchand, [(1981) 2 SCC 414],
Ishwar Das Jain Vs. Sohan Lal, [(2000) 1 SCC 434] and
State of Madhya Pradesh Vs. Sabal Singh & Ors., [(2019)
10 SCC 595]. Since no substantial questions of law are involved
in present appeal thus, same is not liable to be entertained.
Accordingly, the second appeal is found to be without force and
same is hereby dismissed.
9. However, since it has been noticed that appellant obtain the
possession of wooden cabin wayback on 1988 and he is in use and
occupation of same since long, this Court grants three months
time to appellant to vacate and handover the possession to
respondent-landlord subject to payment of due arrears of rent as
mesne profit, if any.
10. Record of the trial Court be sent back forthwith.
(SUDESH BANSAL),J
NITIN /86
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