Rajasthan High Court
Chhotu Ram Saini S/O Late Shri ... vs Balvant Singh Shekhawat S/O ... on 30 June, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Execution Second Appeal No. 1/2022
Chhotu Ram Saini S/o Late Shri Salagramji, Aged About 55 Years,
Resident Of Near Jain Travels, Bajaj Road, Near Samrat Cinema,
Sikar, Tehsil And District Sikar, Rajasthan.
----Appellant/Objector-Appellant
Versus
1. Balvant Singh Shekhawat S/o Girdhri Singh (Deceased),
Resident Of Bajaj Road, Near Sundaram Petrol Pump,
Sikar, Tehsil And District Sikar, Rajasthan.
1/1. Raghuveer Singh Shekhawat S/o Late Shri Balvant Singh
Shekhawat, Resident Of Bajaj Road, Near Sundaram
Petrol Pump, Sikar, Tehsil And District Sikar, Rajasthan.
1/2. Tejpal Singh Shekhawat S/o Late Shri Balvant Singh
Shekhawat, Resident Of Bajaj Road, Near Sundaram
Petrol Pump, Sikar, Tehsil And District Sikar, Rajasthan.
1/3. Smt. Ucchab Kanwar W/o Late Shri Balvant Singh
Shekhawat, Resident Of Bajaj Road, Near Sundaram
Petrol Pump, Sikar, Tehsil And District Sikar, Rajasthan.
1/4. Bai Kanwar D/o Late Shri Balvant Singh Shekhawat,
Resident Of Bajaj Road, Near Sundaram Petrol Pump,
Sikar, Tehsil And District Sikar, Rajasthan.
1/5. Chhotu Kanwar D/o Late Shri Balvant Singh Shekhawat,
Resident Of Bajaj Road, Near Sundaram Petrol Pump,
Sikar, Tehsil And District Sikar, Rajasthan.
1/6. Phool Kanwar D/o Late Shri Balvant Singh Shekhawat,
Resident Of Bajaj Road, Near Sundaram Petrol Pump,
Sikar, Tehsil And District Sikar, Rajasthan.
1/7. Hem Kanwar D/o Late Shri Balvant Singh Shekhawat,
Resident Of Bajaj Road, Near Sundaram Petrol Pump,
Sikar, Tehsil And District Sikar, Rajasthan.
2. Smt. Samta Bai @ Prem Kanwar D/o Late Shri Girdhari
Singh W/o Mansingh Rathore, Aged About 67 Years,
Resident Of Gram Dujar, Tehsil Ladanu, District Nagaur,
Rajasthan.
3. Smt. Nani Bai @ Dault Kanwar D/o Late Shri Girdhari
Singh Rajput, W/o Jaisingh Rathore, Aged About 64
Years, Resident Of Gram Dujar, Tehsil Ladanu, District
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Nagaur, Rajasthan.
4. Smt. Shavani Bai @ Sharvan Kanwar D/o Late Shri
Girdhari Singh Rajput W/o Jaisingh Rathore, Aged About
61 Years, Resident Of Gram Postal Loha, Tehsil
Ratangarh, District Churu, Rajasthan.
5. Smt. Indra Devi W/o Motilal Jain, Aged About 80 Years,
Resident Of Doliyaon Ka Bas, Near Jain Dispensary, Sikar
Tehsil And District Sikar.
6. Gajanand S/o Bhanwar Lal, (Deceased) Resident Of
Purohitji Ki Teil Ki Chhaki Wali Gali, Tabela Road, Sikar,
Tehsil And District Sikar.
6/1. Vimal Kumar S/o Late Gajanand, Aged About 57 Years,
Resident Of Purohitji Ki Teil Ki Chhaki Wali Gali, Tabela
Road, Sikar, Tehsil And District Sikar.
6/2. Pramod Kumar Son Of Late Gajajnand, Aged About 54
Years, Resident Of Purohitji Ki Teil Ki Chhaki Wali Gali,
Tabela Road, Sikar, Tehsil And District Sikar.
6/3. Ratni Devi D/o Late Gajanand, Aged About 51 Years,
Resident Of Purohitji Ki Teil Ki Chhaki Wali Gali, Tabela
Road, Sikar, Tehsil And District Sikar.
6/4. Chandawati D/o Late Gajanand, Aged About 48 Years,
Resident Of Purohitji Ki Teil Ki Chhaki Wali Gali, Tabela
Road, Sikar, Tehsil And District Sikar.
6/5. Tara Devi D/o Late Gajanand, Aged About 45 Years,
Resident Of Purohitji Ki Teil Ki Chhaki Wali Gali, Tabela
Road, Sikar, Tehsil And District Sikar.
6/6. Ratan Lal S/o Late Gajanand (Deceased), Resident Of
Purohitji Teil Meel Gali, Tabela Road, Sikar, Tehsil And
District Sikar.
6/6/1. Indu Devi D/o Ratan Lal, Aged About 58 Years, Resident
Of Purohitji Teil Meel Gali, Tabela Road, Sikar, Tehsil And
District Sikar.
6/6/2. Vidhya Devi D/o Ratan Lal, Aged About 55 Years,
Resident Of Purohitji Teil Meel Gali, Tabela Road, Sikar,
Tehsil And District Sikar.
6/6/3. Santosh Devi D/o Ratan Lal, Aged About 51 Years,
Resident Of Purohitji Teil Meel Gali, Tabela Road, Sikar,
Tehsil And District Sikar.
6/6/4. Salochana Devi D/o Late Ratan Lal, Aged About 48 Years,
Resident Of Purohitji Teil Meel Gali, Tabela Road, Sikar,
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Tehsil And District Sikar.
6/6/5. Nandu Devi D/o Late Ratan Lal, Aged About 45 Years,
Resident Of Purohitji Teil Meel Gali, Tabela Road, Sikar,
Tehsil And District Sikar.
6/6/6. Shanti Lal Jain S/o Late Ratan Lal, Aged About 42 Years,
Resident Of Purohitji Teil Meel Gali, Tabela Road, Sikar,
Tehsil And District Sikar.
6/6/7. Indra Chand Jain S/o Late Ratan Lal, Aged About 42
Years, Resident Of Purohitji Teil Meel Gali, Tabela Road,
Sikar, Tehsil And District Sikar.
7. Mohammad Shafi S/o Abdulla, Aged About 70 Years,
Resident Of Bajaj Road, Near Jain Travels, Sikar,
Rajasthan.
8. Dana Ram S/o Ram Lal Jangid, Aged About 80 Years,
Resident Of Ward No. 31, Mohalla Nayakan, Sikar,
Rajasthan.
9.. Hafiz S/o Mahaboob Khan, Aged About 75 Years, Resident
Of Ward No. Mohalla Karigarran, Near Chandpole Gate,
Sikar, Rajasthan.
10. Deendayal S/o Vaidh Ghanshyam Sharma, Aged About 70
Years, Resident Of Ward No. 4, Near Chhota Talab Ke
Pass, Sikar, Rajasthan.
11. Suresh Sharma S/o Vaidh Ghanshyam Sharma, Aged
About 50 Years, Resident Of Ward No. 4, Near Chhota
Talab Ke Pass, Sikar, Rajasthan.
12. Yogesh Sharma S/o Vaidh Ghanshyam Sharma, Aged
About 45 Years, Resident Of Ward No. 4, Near Chhota
Talab Ke Pass, Sikar, Rajasthan.
13. Madanlal S/o Mangalchand, (Deceased) Resident Of Ward
No. 31, Mohalla Nayakan, Sikar, Tehsil And District Sikar,
Rajasthan.
13/1. Geeta Devi W/o Late Madan Lal, Aged About 60 Years,
Resident Of Ward No. 31, Mohalla Nayakan, Sikar, Tehsil
And District Sikar, Rajasthan.
13/2. Ramratan S/o Late Madan Lal, Aged About 45 Years,
Resident Of Ward No. 31, Mohalla Nayakan, Sikar, Tehsil
And District Sikar, Rajasthan.
13/3. Banwari Lal S/o Late Madan Lal, Aged About 40 Years,
Resident Of Ward No. 31, Mohalla Nayakan, Sikar, Tehsil
And District Sikar, Rajasthan.
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13/4. Makkhan S/o Late Madan Lal, Aged About 36 Years,
Resident Of Ward No. 31, Mohalla Nayakan, Sikar, Tehsil
And District Sikar, Rajasthan.
13/5. Devendra Kumar S/o Late Madan Lal, Aged About 32
Years, Resident Of Ward No. 31, Mohalla Nayakan, Sikar,
Tehsil And District Sikar, Rajasthan.
13/6. Taramani W/o Phool Chand D/o Late Madan Lal, Aged
About 47 Years, Resident Of Ward No. 31, Mohalla
Nayakan, Sikar, Tehsil And District Sikar, Rajasthan.
13/7. Indramani W/o Balkishan D/o Late Madan Lal, Aged About
43 Years, Resident Of Ward No. 31, Mohalla Nayakan,
Sikar, Tehsil And District Sikar, Rajasthan.
13/8. Urmila W/o Subhash Chand D/o Late Madan Lal, Aged
About 38 Years, Resident Of Ward No. 31, Mohalla
Nayakan, Sikar, Tehsil And District Sikar, Rajasthan.
13/9. Sarita W/o Sanjay D/o Late Madan Lal, Aged About 30
Years, Resident Of Ward No. 31, Mohalla Nayakan, Sikar,
Tehsil And District Sikar, Rajasthan.
----Respondents
For Appellant(s) : Mr. Balkishan Saini
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
30/06/2022
1. Heard learned counsel for appellant-objector.
2. Appellant-objector has preferred this second appeal against
the judgment and decree dated 28.5.2022 passed in Civil Appeal
(CIS) No.55/2017 by the Court of Additional District Judge No.1,
Sikar, affirming the judgment dated 06.12.2017 passed in
Objection Application No.20/2011 (CIS No.322/2014) by the Court
of Civil Judge, Sikar, District Sikar whereby and whereunder the
objection application filed under Order 21 Rule 97 CPC against the
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decree dated 25.08.1980 passed in Civil Suit No.07/73, was
dismissed.
3. It appears from record that one Shri. Girdhari Singh, who is
predecessor of respondents Nos. 1 to 4 instituted a civil suit
No.07/1973 for redemption of mortgage and possession against
one Smt. Indira Devi Jain in relation to three shops. The suit was
decreed vide judgment dated 25.08.1980. The appellant-objector
claimed that out of three shops, one shop in question was in
tenancy of his father late Sh.Salag Ram from the plaintiff-decree
holder Girdhari Singh orally since 1980 @ Rs.170/- per month but
due to the court stay, neither rent deed was executed nor receipt
of rent was issued. Appellant-objector claimed that his father was
running a tea stall in the shop and the objector also helped in the
business. The objector claimed that after death of his father, now
he is tenant of plaintiff-decree holder in the shop in question.
When the plaintiff-decree holder sought to dispossess the objector
in execution of the decree dated 25.08.1980, the objector
submitted objections under Order 22 Rule 97 CPC alleging inter
alia that he is not bound by the decree and cannot be evicted from
his rented shop.
4. On the other hand, the plaintiff-decree holder denied the
tenancy of objector and his father in the shop in question and one
Madan Lal was said to be tenant. In the decree dated 25.08.1980,
it was decided that the defendant-judgment debtor had let out the
shops to tenants and would hand over the possession of three
shops to the plaintiff-decree holder. The decree dated 25.08.1980
was amended vide order dated 05.09.1985 (Exhibit 4A and Exhibit
5A). In the amendment order dated 05.08.1985, it was mentioned
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that all three shops were let out by Smt. Indira Devi to defendants
of that suit.
5. The principle issue which was raised in the objection was
that as to whether the plaintiff-decree holder late Girdhari Singh
let out the shop to objector's father orally in the year 1980?
6. The objector was given opportunity to adduced his evidence.
He adduced his oral and documentary evidence. On the basis of
documents (Exhibit A1 and Exhibit A2)- rent note, it was found
that the shop in question was let out to one Madan Lal through
rent note dated 28.11.1978. On appreciation of the decree dated
25.08.1980 and the amended order dated 05.09.1985, it was held
that till 1985 the shops were not in possession of the plaintiff
decree holder Girdhari Singh, therefore, it was observed that the
claim of objector that plaintiff-decree holder let out the shop to his
father in the year 1980, is not believable. Other documentary
evidence was also taken into consideration. The appellant-objector
produced certain bills of electricity consumption in the name of his
brother Sanwar Mal, however, considering the period of electricity
bills, the objector's case to establish the oral tenancy of his father
in the shop in question, was not found proved. The bills of water
consumption, PHED and telephone department for the year 1991
were said to be in the name of objector. The objector could not
explain in what capacity he obtained the water and telephone
connection. The explanation given by the appellant-objector that
the electricity and telephone connection were taken with the
consent of shop owner, was found preposterous and baseless. The
oral evidence adduced by objector was considered but on
appreciation of his evidence as a whole, a finding recorded that
the objector remained failed to prove his oral tenancy in the shop
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in question since 1980. The possession of objector was found as
trespasser, in violation to the decree sought to be executed.
Accordingly, the objections were dismissed on merits vide order
dated 06.12.2017.
7. The order dated 06.12.2017 was challenged by way of filing
appeal, the appellate court re-heard and re-considered the
objections on merits. After re-appreciation of evidence on record,
the appellate court concurred with the fact finding that the
objector is not tenant in the shop in question.
8. On perusal of fact findings recorded by both courts below on
the objections of the appellant-objector, it is clear that the
objection petition has been considered on merits and appellant-
objector was given full opportunity to adduce evidence. The two
courts below, on appreciation/re-appreciation of evidence adduced
by the appellant-objector, have concluded that he could not
establish that the shop in question was let out to his father orally
in the year 1980 by the plaintiff-decree holder.
On the contrary, the possession of objector was found as
trespasser in violation to the decree dated 25.08.1980.
9. Learned counsel for appellant-objector could not point out
any perversity in the fact findings and only stressed that on the
basis of electricity, water and telephone bills, his possession over
the shop in question is proved. Counsel for appellant-objector
could not point out any admissible peace of evidence to show
tenancy of his father in the shop in question.
10. The Honb'le Supreme Court in case of Kondiba Dagadu
Kadam Vs. Savitribai Sopan Gujar [(1999) 3 SCC 722] and catena
of other judgments passed in case of Pakeerappa Rai Vs.
Seethamma Hengsu & Ors., [(2001) 9 SCC 521], Thulasidhara &
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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], State of Madhya Pradesh Vs. Sabal
Singh & Ors., [(2019) 10 SCC 595] and D. Doddanarayan
Reddy and Ors. Vs. C. Jayarama Reddy and Ors. Reported in
[(2020) 4 SCC 659] has categorically held that at the stage of
second appeal, fact findings recorded by two Courts below, based on
appreciation of evidence, should be honoured and must not be
interfered with unless and until there is some perversity, illegality or
jurisdictional error which leads manifest injustice. Once findings of fact
recorded by two Courts below are justified and based on due
appreciation of evidence, re-appreciation of evidence at the stage of
second appeal in order to draw a different conclusion is not warranted.
The scope of second appeal is confined to examine substantial question
of law, which are sine qua non to exercise powers under Section 100 of
CPC.
11. In present case, on appreciation of findings of fact, which suffers
from no perversity, no question of law arises, in absence of any
substantial question of law, this second appeal is not liable to be
entertained and same is hereby dismissed.
12. Any other pending application(s), if any, also stand(s) disposed of.
13. There is no order as to costs.
(SUDESH BANSAL),J
SACHIN /29
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