Babu Lal vs Thakur Aghunath Singh
2022 Latest Caselaw 6060 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

           S.B. Civil Second Appeal No. 410/2000

Baby Lal S/o Shri Ranjit Singh R/o Kesargarh, Near Rajasthan
Patrika, Jawahar Lal Nehru Marg, Jaipur
                                                     ----Appellant-Defendant
                                   Versus
Thakur Raghunath Singh S/o Shri Kesari Singh R/o Narain Niwas,
Jawahar Lal Nehru Marg, Near Police Memorial, Jaipur
                                                      ----Respondent-Plaintiff

For Appellant(s)          :    Ms. Pinky Saini for
                               Mr. C L Saini
For Respondent(s)         :    Mr. Brij Kishore Sharma



           HON'BLE MR. JUSTICE SUDESH BANSAL

                                Judgment

07/09/2022

1. The instant second appeal has been preferred by defendant-

tenant under Section 100 of Code of Civil Procedure, assailing the

judgment and decree dated 01.09.2000, passed in Civil First

Appeal No.22/99 by the Court of Additional District Judge No.4,

Jaipur City, Jaipur whereby and whereunder the first appeal was

allowed and decree for eviction along with arrears of rent and

mesne profits has been passed, as the trial court i.e. the

Additional Civil Judge (Junior Division) No.2, Jaipur City, Jaipur,

vide its judgment dated 15.04.1999, dismissed the suit for

eviction bearing No.389/93.

2. The rented property is a residential premises comprising two

rooms situated at Kesargarh, Jawahar Lal Nehru Marg, Jaipur. As

per plaintiff, the suit premises was let out in the year 1970 @

Rs.25/- per month, whereas as per defendant, the suit premises is

(2 of 9) [CSA-410/2000]

in tenancy since the time of his forefathers from 1946 @ Rs.10/-

per month, which was enhanced later on to Rs. 25/- per month.

3. This Court, vide order dated 09.01.2001, framed following

substantial questions of law to be considered in the present

second appeal:-

(i) Whether raising construction of additional premises with the consent of landlord amounts to nuisance within the meaning of Section 13(i)(d) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950?

(ii) Whether in view of no objection of the landlord against the construction raised by the appellant/tenant in his land for more than 44 years amounts to waiver so as not to cause nuisance within the definition of Section 13(i)(d) of the said Act?

(iii) Whether the mesne profits for the rented premise could exceed the monthly rent?

4. Heard counsel for both parties, perused the impugned

judgments and scanned the record.

5. Respondent-plaintiff instituted the present civil suit for

eviction way back on 11.03.1993 on the ground of default,

material alteration and nuisance, invoking the provisions of

Section 13 of the Rajasthan Premises (Control of Rent & Eviction)

Act, 1950 (hereinafter referred as 'the Act of 1950').

6. Appellant-defendant submitted written statement and

admitted his tenancy in the suit premises, however, declined the

grounds of eviction and the period of tenancy.

7. Learned trial court, on 27.08.1996 settled issues as per rival

pleadings of both the parties.

8. Prior to framing of issues, since the issue of default was

involved in the present eviction suit, therefore, as per provision of

(3 of 9) [CSA-410/2000]

Section 13(3) of the Act of 1950, the provisional rent was

determined vide order dated 16.11.1994 @ Rs.25/- per month for

the period from 01.03.1990 to 31.10.1994 and defendant-tenant

was directed to pay the determined rent and the rent of future

months regularly in the bank account of plaintiff.

9. Both the parties adduced their evidence on the respective

issues.

10. Learned trial court, vide its judgment dated 15.04.1999, held

that defendant-tenant has committed default in payment of rent

but extended the benefit of first default and other grounds of

eviction were not held proved and therefore, the suit for eviction

was dismissed, however, the rent deposited by defendant pursuant

to the order of determining the provisional rent was allowed to be

withdrawn by plaintiff.

11. Plaintiff preferred first appeal against the dismissal of his

eviction suit vide judgment dated 15.04.1999. The first appellate

court, reconsidered the entire evidence afresh and vide its

judgment dated 01.09.2000, observed that the trial court has

rightly held the defendant as defaulter but committed error in

holding that defendant-tenant has not committed any nuisance

and has not altered the rented premises without consent of

landlord. The first appellate court observed that defendant-tenant

was a washer-man and he was let out a portion of two rooms with

an open peace of land abutted to two rooms but he has raised

construction of two rooms and a tank in the open land without

permission of the landlord. The first appellate court observed that

since the defendant-tenant has encroached over the portion of

landlord, tenant is guilty of causing nuisance, which is a recurring

cause of action and on this ground tenant is liable to be evicted.

(4 of 9) [CSA-410/2000]

The findings of first appellate court are based on appreciation of

evidence of parties and after considering the rent note (Ex.1) and

other documents of purchasing the material for construction

(Ex.A1). The first appellate court observed that defendant-tenant

has not denied from raising new construction encroaching over the

open portion of the plot in question, however, he submitted that

the same was done with the permission of plaintiff and the same

is old.

The first appellate court, while deciding issue No.4 related to

nuisance, relied upon the judgment of Punjab and Haryana High

Court in case of Nand Lal Vs. M/s Mac Millan Pharmaceutical

[(1994) 2 RCR 18] and observed that raising construction on the

open land of landlord without his permission is covered in term of

nuisance to the landlord.

The first appellate court while deciding Issue No.5, awarded

mesne profits @ Rs.1000/- payable by defendant from the date of

filing of the suit till delivery of possession to the plaintiff.

12. Finally, the first appellate court decreed the suit for eviction

and passed a decree for eviction along with arrears of mesne

profits @ Rs.1000/- per month from the date of filing of the suit

till vacation of the suit premises plus the rent @ Rs.25/- per

month vide its judgment and decree dated 01.09.2000.

13. Against the judgment and decree for eviction dated

01.09.2000, the present second appeal has been preferred.

14. Counsel for respondent has vehemently argued that

appellant has not paid the rent during course of second appeal

and enjoying the possession of suit property in the garb of

pendency of this second appeal. He further argued that tenant

raised additional construction without permission of the landlord

(5 of 9) [CSA-410/2000]

and as such he caused nuisance, which is a ground for eviction of

the tenant, he placed reliance on the judgment delivered in case

of Hiralal and Ors. Vs. Sanwaldas Jain [(1994) 2 RCR(Rent)

379]. In that case the High Court of Madhya Pradesh has held the

act of tenant of encroachment a nuisance and a ground for

eviction of the tenant.

15. Counsel for appellant is not in a position to rebut the

argument of counsel for respondent and could not produce the

proof for making payment of rent during course of this second

appeal. In the present appeal, vide order dated 09.01.2001, the

execution of decree was stayed, subject to deposition of arrears of

rent and monthly rent continuously.

16. Substantial Question of Law No.1:

16.1 As far as substantial question of law No.1 is concerned, from

the evidence on record it appears that defendant raised

construction on open peace of land of landlord without his

permission. The first appellate court has recorded a fact finding

that the construction was raised by tenant without permission of

landlord. The fact finding recorded by first appellate court is based

on due appreciation of evidence and is a possible and plausible

view, which may not be said to be suffered from perversity so as

to give rise to any substantial question of law. In case of Nand

Lal (Supra), the Punjab and Haryana High Court and in case of

Hiralal (Supra), the High Court of Madhya Pradesh, have held

that an act of tenant of encroachment over the property of

landlord is a nuisance. The proposition of law applies to the facts

of present case and the first appellate court has not committed

any illegality in passing the decree for eviction on the ground set

forth under Section 13(i)(d) of the Act of 1950.

(6 of 9) [CSA-410/2000]

16.2 In this view, the substantial question of law No.1 is

answered in negative and against appellant.

17. Substantial Question Of Law No.2:-

17.1 As far as substantial question of law No.2 is concerned, it

appears from pleadings of parties that defendant-tenant never

took any plea of waiver of the ground of nuisance and therefore,

such question of law does not arise out of the pleadings of parties.

The issue of waiver is a question of fact and law and unless was

not raised in the pleadings and during course of evidence, the

same cannot be allowed to raise at the stage of appeal.

17.2 In this view, this substantial question of law has no

foundation on facts and material on record and as such deserves

to be answered in negative and is decided against appellant.

18. Substantial Question of Law No.3:-

18.1 As far as the substantial question of law No.3 is concerned,

in the present case, the first appellate court recorded a fact

finding that the defendant-tenant has encroached over the open

peace of land without landlord's consent and raised unauthorized

construction, therefore, the plaintiff was held entitled for mesne

profits @ Rs.1000/-, other than the amount of monthly rent @

Rs.25/- per month. The quantum of mesne profits @ Rs.1000/-

may not be treated as excessive or exorbitant considering the

location of the suit premises and the nature of construction as also

the use of the suit premises by defendant.

18.2 Otherwise also, the present substantial question of law is

actually a question of fact and cannot be treated as substantial

question of law, as such answered against the appellant.

(7 of 9) [CSA-410/2000]

19. 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 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

(8 of 9) [CSA-410/2000]

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."

20. 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.

21. The Hon'ble Supreme Court in another Case of Umerkhan

Vs. Bismillabi & Ors. [(2011) 9 SCC 684] has held as under:-

"11.In our view, the very jurisdiction of the High Court in hearing a second appeal is founded on the formulation of a substantial question of law. The judgment of the High Court is rendered patently illegal, if a second appeal is heard and judgment and decree appealed against is reversed without formulating a substantial question of law. The second appellate jurisdiction of the High Court under Section 100 is not akin to the appellate jurisdiction under Section 96 of the Code; it is restricted to such substantial question or questions of law that may arise from the judgment and decree appealed against. As a matter of law, a second appeal is entertainable by the High Court only upon its satisfaction that a substantial question of law is involved in the matter and its formulation thereof. Section 100 of the Code provides that the second appeal shall be heard on the question so formulated. It is, however, open to the High Court to reframe substantial question of law or frame substantial question of law

(9 of 9) [CSA-410/2000]

afresh or hold that no substantial question of law is involved at the time of hearing the second appeal but reversal of the judgment and decree passed in appeal by a court subordinate to it in exercise of jurisdiction under Section 100 of the Code is impermissible without formulating substantial question of law and a decision on such question."

22. 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 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."

23. No other substantial question of law has been suggested by

counsel for appellant during course of argument. All substantial

questions of law as mentioned hereinabove, have been answered

in negative and consequentially the second appeal is bereft of

merits and the same is hereby dismissed.

24. However, since appellant is in possession of the rented

premises since long, three months time is granted to vacate and

hand over the possession to respondent-plaintiff, subject to

payment of arrears of rent and mesne profits as directed by the

first appellate court vide its judgment and decree dated

01.09.2000.

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

disposed of.

26. Record of both the courts below be sent back forthwith.

(SUDESH BANSAL),J

SACHIN/82

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