Rajasthan High Court

Jagannath Prasad Alias Jaggi Ram ... vs Suresh Chand on 31 October, 2022

Bench: Sudesh Bansal

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

             S.B. Civil Second Appeal No. 455/2017

1.       Jagannath Prasad @ Jaggi Ram S/o Shri Sohan Lal, R/o
         Chauburja, Bharatpur (Since Deceased)
1/1.     Shakuntala Devi W/o Jagannath Prasad
1/2.     Lata D/o Jagannath Prasad
1/3.     Raju S/o Jagannath Prasad
         All R/o Cheema Ki Gali, Near Old Agarwal Dharmshala,
         Mori Char Bag, Bharatpur
2.       Vidyadevi W/o Shri Surajbhan R/o Chauburja, Bharatpur
3.       Ashok Kumar S/o Shri Surajbhan
4.       Mahesh Chand S/o Shri Surajbhan
5.       Subhash Chand S/o Surajbhan
6.       Rajesh Kumar S/o Shri Surajbhan
7.       Sanjay Kumar S/o Shri Surajbhan
         All R/o Chauburja, Bharatpur
                                                      ----Appellants/Plaintiffs
                                   Versus
Suresh Chand S/o Shri Jagannath Prasad, R/o Near Panticostal
School, Krishna Nagar, Bharatpur
                                                  ----Respondent/Defendant

For Appellant(s)         :     Mr. D K Dixit
For Respondent(s)        :



            HON'BLE MR. JUSTICE SUDESH BANSAL

                                Judgment

31/10/2022

1. The instant second appeal, under Section 100 of the Code of

Civil Procedure, arises against the judgment and decree dated

26.05.2017, passed in Civil Regular Appeal No.159/2016 by the

Court of Additional District Judge No.3, Bharatpur, whereby and

whereunder first appeal, filed by defendant-respondent against

(2 of 6) [CSA-455/2017]

the judgment and decree dated 19.08.2000, passed in Civil Suit

No.11/2000 by the Court of Additional Civil Judge (Senior

Division) No.3, Bharatpur, was allowed and consequentially

application for restoration of possession filed by evicted tenant

came to be dismissed.

2. Heard counsel for appellants, perused the impugned

judgments and record.

3. It appears from record that initially in respect of three shops

in question, in Civil Suit No.08/1969, an eviction decree was

passed against tenant-Jagannath Prasad @ Jaggi Ram and his

borther Surajbhan, on the ground of bona fide and reasonable

necessity of rented shops to respondent-landlord and that eviction

decree attained finality in second appeal vide judgment and

decree dated 15.09.1987. In pursuance to the eviction decree,

rented shops have been vacated and possession was delivered to

respondent-landlord in May, 1988.

4. Thereafter, tenant-Jagannath and legal representatives of

Surajbhan instituted an application under Section 15 of the

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

restoration of possession of rented shops on the ground that the

landlord after obtaining vacant possession of rented shops, has

not started any business threrein.

5. Learned trial court, vide judgment and decree dated

19.08.2000, allowed the application and directed respondent-

landlord to re-deliver the possession of rented shops to plaintiff-

tenants.

6. Respondent-landlord challenged the judgment and decree

dated 19.08.2000 by way of filing first appeal. The first appellate

court, re-considered the entire subject matter in issue and vide

(3 of 6) [CSA-455/2017]

judgment and decree dated 26.05.2017, has quashed and set

aside the judgment and decree dated 19.08.2000 and dismissed

the application, filed by tenants for restoration of possession.

7. The first appellate court has given reasons to upset findings

and judgment of the trial court dated 19.08.2000. The first

appellate has observed that it was the burden of plaintiffs-tenant

to prove that landlord, after obtaining vacant possession of rented

shops, has not started any business therein and since tenants

could not lead sufficient evidence, they cannot take benefit of the

lack of evidence on part of the landlord. The first appellate court

has observed that in absence of sufficient evidence from the side

of tenants, the onus cannot be shifted upon landlord to prove that

he had started the use of rented shops for business purposes,

after obtaining the possession in execution of the eviction decree.

Learned trial court fell into error by shifting the onus upon

landlord to prove that he started to use shops in question for

business purposes and in absence of producing evidence of having

licence under the Shop Act, electricity connection and bills'

vouchers for running business, it is not proved that he started to

use rented shops for commercial purposes. The first appellate

court has observed that landlord deposed his evidence that rented

shops were started to use for selling the colour & paint materials

etc. It is come on record that the electric connection was in the

name of tenants and after vacation of shops in question, that

electric connection was disconnected, therefore, on that basis, it

may not be assumed that landlord did not use rented shops for

business purposes. Statements of PW-1 and PW-2 wholly fall short

to prove requirements of Section 15 of the Act of 1950. It appears

(4 of 6) [CSA-455/2017]

that application was filed on the assumption that respondent-

landlord has intention to let out the shops in question.

8. It may also be noticed that the eviction decree which

attained finalty vide judgment dated 15.09.1987 and thereafter,

since May, 1988, the possession of rented shops is laying with

respondent-landlord, the presen second appeal is pending since

2017 without any persuasion on merits, therefore, in such facts

and circumstances, this Court does not find any force in the

instant second appeal.

9. Questions of law as formulated and suggested by appellants

in their memo of appeal, are essentially questions of fact and do

not have trappings of the substantial questions of law.

10. Hon'ble the Supreme Court in case of Kondiba Dagadu

Kadam Vs. Savitribai Sopal Gurjar [(1999) 3 SCC 722], has

held as under:

"5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary

(5 of 6) [CSA-455/2017]

to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence."

Hon'ble the Supreme Court in another case of Santosh Hazari

vs Purushottam Tiwari [(2001) 3 SCC 179], held as under:

"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

11. Both aforementioned judgments have been relied upon by

the Hon'ble Supreme Court in case of C. Doddanarayan Reddy

Vs. C. Jayarama Reddy [(2020) 4 SCC 659], for not

interfering with the findings of fact concurrently recorded by the

two courts below or the first appellate court, unless findings are of

(6 of 6) [CSA-455/2017]

such nature that no judicial officer, acting judicially & reasonably

has reached to such a conclusion.

12. This Court finds that the first appellate court has acted well

within its jurisdiction and the reversal of findings are based on due

appreciation of evidence by assigning reasons. Such findings do

not suffer from any perversity. Learned counsel for appellants also