Aamna vs Thakurji Shri Krishan Bihari J
2022 Latest Caselaw 5378 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

             S.B. Civil Second Appeal No. 538/2002

1.     Aamna W/o Late Shri Abdul Sakoor Deceased,
2.     Latif S/o Shri Abdul Sakoor,
3.     Waheed S/o Shri Abdul Sakoor Deceased
4.     Hakim S/o Shri Abdul Sakoor,
5.     Munna @ Abdul Sattar S/o Shri Abdul Sakoor,
6.     Abdul Hamid S/o Shri Abdul Sakoor,
7.     Jatoon D/o Shri Abdul Sakoor,
8.     Jameela D/o Shri Abdul Sakoor,
9.     Wakeela D/o Shri Abdul Sakoor(Deceased)
        All resident of Jaipur City Chowkari Purani Basti,
       Nahargarh Road, Lambay Sarak Dukan, Paschin Mukhi
       Mandir, Nadirji Ke Bahar, Jaipur
10.    Smt. Munna W/o Late Shri Abdul Rajjak
11.    Abdul Aziz S/o Shri Abdul Rajjak,
12.    Munnwar D/o Shri Abdul Rajjak
13.    Madina D/o Shri Abdul Rajjak
14.    Munni D/o Shri Abdul Rajjak
15.    Mahamuna D/o Shri Abdul Rajjak
16.    Nasim D/o Shri Abdul Rajjak
17.    Ajij Bano D/o Shri Abdul Rajjak
       All resident of Jaipur City Chowkari Purani Basti, House
       No.    2077,      Nahargarh          Road,       Near      Mandir   Nadiraji
       (Behind), Jaipur
                                                     ----Appellants-Defendants
                                      Versus
1.     Thakurji Shri Krishan Bihari Nadirji Virajman, Jaipur City
       Chowkari Purani Basti, Nahargarh Through Mahant Shri
       Shankar Lal
2.     Shankar Lal Deceased
2/1.   Smt. Santosh Devi Wife of late Shri Shankar Lal
2/2.   Navindra Tiwari Son of late Shri Shankar Lal,
2/3.   Smt. Chanda wife of Shri Giriraj, Daughter of late Shri
       Shankar Lal
2/4.   Smt. Ranjana Wife of Shri Ashok, daughter of late Shri


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                                           (2 of 12)              [CSA-538/2002]


       Shankar Lal,
       All resident of Jaipur City Chowkari Purani Basti, House
       No. 2077, Nahargarh Road, Near Mandir Nadiraji Behind,
       Jaipur
                                                   -----Plaintiffs-respondents

3. Abdul Rashid S/o Shri Abdul Rajak, R/o Jaipur City Chowkari Purani Basti, House No. 2077, Nahargarh Road, Near Mandir Nadiraji Behind, Jaipur

----Proforma Respondent

For Appellant(s) : Mr. M.M. Ranjan, Senior Advocate assisted by Mr. Hemendra Sharma For Respondent(s) : None Present

HON'BLE MR. JUSTICE SUDESH BANSAL

Judgment

02/08/2022

1. Appellants-defendants-tenants have preferred this second

appeal under Section 100 CPC assailing the judgment and decree

dated 03.09.2002 passed in Civil First Appeal No.32/1999 by the

Court of Additional District Judge No.2, Jaipur City, Jaipur,

affirming the judgment and decree for eviction dated 02.09.1999

passed in Civil Suit No.518/1976 by the Court of Additional Civil

Judge No.5, Jaipur City, Jaipur whereby and whereunder the civil

suit for rent and eviction filed by respondent-plaintiff-temple Shri

Krishan Bihari Nadirji Virajman, has been decreed on merits.

2. This second appeal is required to be considered on the

substantial questions of law formulated by the Co-ordinate Bench

of this Court vide order dated 04.10.2006 which, read as under:-

"(I)Whether when the tenancy was composite for residence and for commercial purpose then a decree of eviction can be passed on the ground contained under Section 13(1)(J) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950?"

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"(II)Whether purchase of a house by one of the tenant can be a ground for eviction of two tenants and the decree of eviction passed by the courts below are vitiated?"

3. In order to appreciate both substantial questions of fact, it is

necessary to re-capitulate the facts of case arising out of the

pleadings and material available on record which are as under:-

4. Respondents-plaintiffs instituted a civil suit for eviction way

back on 26.08.1976 under the provisions of Section 13 of the

Rajasthan Premises (Control of Rent and Eviction) Act, 1950

(hereinafter referred as 'the Act of 1950'). The tenancy of

appellants-defendants in the premise in question was alleged on

the basis of rent note dated 01.04.1961, at the rate of Rs.40/- per

month though the defendants claim their tenancy since prior to

1938. Plaintiffs came out with a specific case that the rented

premise was let out for residential purpose and wherein

defendants started to run commercial activities as they installed

kuti machine and ara machine in the rented premise nohra of

temple. The rented premise is situated nearby the temple and the

nature of rented premise is residential which is mentioned in the

plaint as under:-

"नोहरा वाके शहर जयपुर चौकड़ी पुरानी बस्ी, सड़क नाहर गढ़ चौराहा बारह माईयान, मंदिर नािर जी के पीछे पद्ंम िेख्ा हआ ह उसके केवल अंिरूनी मकाना् मंदजल पहली मम ही व चौक व ्हार् के हकहकह इस्ेमादल।"

5. Apart from other grounds of default, sub-letting, material

alteration and nuisance, plaintiffs sought amendment in the plaint

and in the amended plaint in Para No.9( क), specifically pleaded

that defendant-tenant has acquired alternative and suitable

premise as the defendant Abdul Rajjak and his successor Joje

Munnu have purchased one double storied building bearing

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municipal No.964 at Chowkri Topkhana, Hajoori Rasta, Khurha

Luharan, Macchiwalon ka Mohalla, Jaipur through registered sale

deed dated 04.07.1967 and has got possession of the said

premise. Plaintiffs prayed to grant the decree for eviction on

various grounds including one of the additional grounds of default,

sub-letting, nuisance and material alteration that tenants have

acquired alternative suitable accommodation, hence they are

entitled to evict defendants-tenants. It may be noticed that such

additional ground of eviction is available under Section 13 of the

Act of 1950, which reads as under:

"Section 13(1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree; or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefore to the full extent allowable by this Act, unless it is satisfied-

(i)that the tenant has built, acquired vacant possession of or been allotted a suitable residence."

6. Appellants-defendants submitted written statements and

admitted their tenancy in the rented premise though denied the

rent note dated 01.04.1961 and claimed their tenancy prior to

that. It may be noticed that defendant No.2 Abdul Rajjak though

was alleged as sub-tenant in the plaint but defendants took a

specific defense that they are the tenants in the rented premise.

As far as, the purchase of premise bearing municipal No.964

through registered sale deed dated 04.07.1967 by defendant No.2

Abdul Rajjak is concerned, this fact was not in dispute but

defendants took a defense that the purchased premise is not

vacant and the same is in possession of one tenant namely Mohd.

Umar. Then defendants took a defence that alternative premise is

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not vacant, hence ingredients of Section 13(1)(i) are not

established.

7. The learned trial court, on the basis of rival pleadings of both

parties framed as many as twelve issues including issues No.10 &

11, which are clinching issues in the present appeal. As far as,

other issues related to letting out the rented premise through rent

note dated 01.04.1961, default, material alteration, sub-letting,

nuisance etc. are of not much relevance here. Issues No. 10 & 11

are relevant which are reproduced herein:-

"10.Whether defendant has got suitable residence, therefore, plaintiff is entitled for the decree of eviction?

11.Whether defendant No.2 Abdul Rajjak was sub- tenant and if alternatively he is treated as tenant, whether plaintiff is entitled for the eviction decree against him as well?"

8. Both parties adduced their respective evidence. From the

side of appellants, PW.1 to PW.6 were examined and documents

were exhibited. In rebuttal, from the side of defendants, DW1 to

DW3 were examined and documents were exhibited.

9. Learned trial court vide judgment and decree dated

02.09.1999 has recorded a fact finding that defendant No.2 Abdul

Rajjak is tenant in the rented premise and he is not the sub-

tenant. Such finding has been passed while deciding the issue

No.4, regarding sub-letting. After recording such finding, learned

trial court has observed that defendant No.2 Abdul Rajjak has

purchased another premise vide registered sale deed dated

04.07.1967 (Ex.1). As far as, the defence of defendants that

vacant possession of the purchased premise was not obtained,

was dis-believed as defendants could not show that the purchased

premise is in possession of another tenant namely Mohd. Umar.

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The defence taken by defendants-tenants, to refute the ground of

eviction as enshrined under Section 13(1)(i) was not found proved

and in view of an undisputed and admitted fact that defendants-

tenants have purchased alternative premise through registered

sale deed dated 04.07.1967 and have got possession, the trial

court passed the eviction decree on this ground.

10. Appellants-defendants assailed the decree for eviction by

way of filing first appeal. Since, the decree was passed on the

findings of issues No.10 and 11 and on the ground of Section

13(1)(i) of the Act of 1950, therefore, to this extent the decree

was challenged and the finding of trial court passed against

plaintiffs in relation to the other grounds were not assailed before

the first appellate court. The first appellate court, while deciding

first appeal on merits vide judgment and decree dated

03.09.2002, has held that appellants-defendants have executed

rent note dated 01.04.1961 for a period of 11 months. The

execution of the rent note (Ex.2) has been proved by plaintiffs, by

his evidence as well as producing witnesses PW.2, PW.4 & PW.5. In

relation to acquire the alternative, suitable and vacant

accommodation to appellants-defendants, is concerned, the

appellate court observed that the DW.1 Abdul Azeez admits to

purchase the house through Registry (Ex.1) dated 04.07.1967.

DW.1 also admits that the purchased house is double storied. The

appellate court observed that the sale deed (Ex.1) itself contends

a recital that the vacant possession of the house, has been handed

over to purchaser. The appellate court observed that the

contention of defendants that the purchased house is in

possession of another tenant namely Mohd. Umar, is not proved as

DW.1 Abdul Azeez himself admits that he has not visited the

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purchased house. The statements of DW.3 Abdul Latif have been

noticed to be contradictory to statements of DW.1 and there is no

other evidence adduced by defendants-tenants to prove that the

purchased house is in possession of tenant Mohd. Umar. The

plaintiffs evidence that defendants have acquired vacant and

suitable alternative residence, is found sufficient to prove the

essential ingredients of Section 13(1)(i) of the Act of 1950.

Therefore, the first appellate court observed that the defence and

arguments raised by defendants are not proved and the trial court

has rightly passed the decree for eviction vide judgment dated

02.09.1999.

With the aforesaid fact findings & material available on

record, now the substantial questions of law are considered.

11. Substantial Question of Law No.1:-

As far as this substantial question of law is concerned, it may

be observed that such substantial question of law does not arise

out of pleadings of the plaint. In the plaint, plaintiff-landlords have

come out with a clear case that the suit premise was let out

through rent note dated 01.04.1961 for the residential purpose ad

defendants-tenants have started to use the premise for

commercial activities by installing a kuti machine and ara

machine. Thus, it may not be said that it is a case of landlords-

plaintiffs that rented premise was let out for composite purpose it

means for both residential and commercial purpose. Though, it is

the defence of defendants-tenants but the same has not been

proved. The question of law which does not arise out of basic

pleadings of the plaint, may not be held to be involved at the

stage of second appeal. Both courts below have considered

pleadings of plaint and in view of the admitted and undisputed fact

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that defendants-tenants have purchased alternative & suitable

accommodation of double storied house through registered sale

deed dated 04.07.1967 and have got the possession of the same,

have passed the decree for eviction on the ground as enshrined

under Section 13(1)(i) of the Act of 1950. In that view, this

substantial question of law is answered in negative against

appellants and decided accordingly.

12. Substantial Question of Law No.2:-

As far as, this substantial question of law is concerned, it is

not a case of two different tenants in the rented premise. In fact,

plaintiffs instituted a civil suit claiming therein that the rented

premise was let out to defendant No.1 Abdul Sakoor, who has sub-

let this premise to defendant No.2 Abdul Rajjak. Defendants took

a defence that Abdul Rajjak is the original tenant and not sub-

tenant. On the basis of rival pleadings of parties, issue No.4 of

sub-letting was framed. While deciding issue of sub-letting i.e.

issue No.4, the trial court has recorded a finding that defendant

No.2 Abdul Rajjak is the tenant in the rented premise and not sub-

tenant. Such fact finding has attained finality as not challenged

before the first appellate court. The tenancy of Abdul Rajjak is

joint with the Abdul Sakoor. Therefore, it is not a case that out of

two separate tenants, one co-tenant has acquired an alternative

accommodation. Once it is an admitted fact that alternative

accommodation has been purchased by defendant No.2 Abdul

Rajjak through registered sale deed dated 04.07.1967, who is

tenant in the rented premise, the same applies for the rented

premise as a whole against defendants and the ground of eviction

as enshrined under Section 13(1)(i) of the Act of 1950 stands

available to landlords-plaintiffs. Moreover, it may be noticed that

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defendants have not raised any plea in their written statements

that both defendant No.1 & defendant No.2 are two separate

tenants in the rented premise but their defence is both are tenants

and defendant No.2 is not sub-tenant. Therefore, appellants-

defendants can not be allowed to take a new defence at the stage

of second appeal, to bifurcate & divide the single tenancy between

two defendant No.1 & defendant No.2 separately. The question of

law as alleged by appellants is whole beyond the scope of their

defence taken in written statements, rather can be said to

contrary to their defence. Accordingly, this substantial question of

law deserves to be answered in negative and against appellants.

13. During course of arguments, from the side of appellants no

other substantial question of law has been proposed/suggested

and in addition to that, this Court also does not find any

substantial question of law involved in this present second appeal.

14. The scope of interference by the High Court under Section

100 CPC against the concurrent findings of fact, has been

discussed in umpteen number of judgments by the Hon'ble

Supreme Court and it has been held that the High Court should

not interfere in the fact findings unless the same are perverse and

if the view taken by courts below is a plausible view, which is not

contrary to the settled proposition of law, should not be interfered

with. Few of the judgments of Hon'ble Supreme Court are as

follows:-

The Hon'ble Supreme Court in case of Damodar Lal Vs.

Sohan Devi & Ors. [(2016) 3 SCC 78] has observed as

under:-

"Para 12.....Even if the finding of fact is wrong, that by itself will not constitute a question of law. The

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wrong finding should stem out of a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity."

The Hon'ble Supreme Court in another case of

C.Doddanarayana Reddy Vs. C.Jayarama Reddy [(2020) 4

SCC 659], while discussing the jurisdiction of the High Court to

interfere with the finding of fact under Section 100 CPC has held

that though the High Court could have taken different view acting

as the trial Court but once, two Courts below have returned

finding which is not based upon any misreading of material

documents, nor against any provision of law neither could it be

said that any judge acting judicially and reasonably could have

reach such a findings, then, the Court cannot be said to have

erred. Relying upon the previous judgment the Supreme Court has

held as under:-

"Recently in another judgment reported as State of Rajasthan v. Shiv Dayal [(2019) 8 SCC 637], it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded dehors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:

"16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose, J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs.

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Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43)."

15. Before parting with the present judgment, this Court would

also like to consider the aim and object of the rent control

legislation in order to consider that as to whether appellants-

tenants, who have completed the tenure of tenancy for more than

60 years in the rented premises (as per plaintiffs the tenancy of

appellants commenced from 01.04.1961, where defendants claim

their tenancy prior to year 1938) are entitled to seek protection

under the Rent Control Act, 1950. It may be noticed that the rent

control legislation was entitled to strike a reasonable balance

between the landlord and tenant. At one hand where the tenant

requires adequate protection against his eviction at the hands of

aggressive designed greedy landlord, at the same time rights of

landlord also require protection to increase the rent reasonably

and to evict tenant on grounds permissible in law. The basic object

of the Rent Control Act, 1950 is to save the harassment of tenant

from unscrupulous landlords. The object of the Rent Control Act,

1950 may not be misconstrued to deprive the landlords of their

bona fide properties for all times to come.

Such proposition of law was expounded by the Hon'ble

Supreme Court in case of Shakuntala Bai Vs. Narayan Das

reported in [(2004) 5 SCC 772], Satyavati Sharma Vs.

Union of India Reported in [(2008) 5 SCC 287] & State of

Maharashtra Vs. Super Max International Private Limited

Reported in [(2009) 9 SCC 772].

16. Having discussed the second appeal on facts and law as well

as on merits in detail as also considering the aim and object of

rent control legislation, this Court is not inclined to interfere with

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the decree for eviction passed against appellants-tenants, at least

at the stage of second appeal. As a consequence, this second

appeal is dismissed and the decree for eviction is sustained. There

is no order as to costs.

17. After deciding the second appeal on merits, this Court is also

taking note of arguments raised by the senior advocate on behalf

of appellants-tenants that the rented premise is not in their actual

and physical possession and appellants are not in use and

occupation of the rented premise. He contends that the rented

premise has been sealed by the Municipal Corporation for more

than ten years. If that is so, appellants-tenants have not taken

any steps to get de-sealed the rented premise. This fact itself

fortifies and supports the eviction decree that appellants-tenants

have got alternative premise and they would suffer no hardship, if

the eviction decree is sustained.

However, considering the fact that the tenancy of appellants-

tenants in the rented premise is from long period of more than 60

years, at least, and appellants have argued the appeal on merits,

therefore three months time is granted to vacate and hand over

the vacant possession of the rented premise to respondents-

plaintiffs, subject to payment of arrears of mesne profits and

future mesne profits, if any, as determined by this Court during

course of this second appeal vide order dated 04.06.2006.

18. All other pending application(s), if any, also stand(s)

disposed of.

19. Record of both courts below be sent back.

(SUDESH BANSAL),J SACHIN /98

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