Krishan Kumar vs Vikas Gandotra

B.L. Bhat, J.—This civil Second Appeal is directed against the Judgment and decree recorded by the Principal District Judge, Udhampur

dated 29-09-2001, whereby the appeal of the appellant/dependent came to be dismissed and the Judgment and decree dated 30-08-1999

recorded by the trial court in Civil Original Suit titled as Vikas Gandotra V/s. Krishan Kumar came to be confirmed. 2. The facts leading up to this

appeal are that a suit for a ejectment of the single story Shop located at Bazar Chabutra, Udhampur came to be instituted by the respondent/

plaintiff before the learned Munsiff, Udhampur against the appellant/defendant with the averments that the suit shop which belongs to the

respondent/plaintiff was let out to the appellant/defendant on monthly rent of Rs 120/- for a period of 11 months w.e.f. 01-06-1991, in this behalf

a Rent Note dated 06-04-1991 came to be executed, that the contractual tenancy has come to an end but the appellant/defendant has not

delivered back the possession of the suit shop to the respondent/ plaintiff, that the appellant/defendant continues to be in possession of the suit

shop as a statutory tenants; that the suit shop is a very old construction which is in delipidated condition likely to be collapse any movement,

therefore, it needs reconstruction. That the respondent/ plaintiff intends to construct a new pacca shop after demolishing the suit shop and also

want to carve out a stair-case as an approach to the first floor of the shop whereupon he want to raise further construction, for this, he has

prepared a map and the same has been submitted to the Town Area Committee, Udhampur for sanction; that for meeting of costs of the proposed

construction, the respondent/plaintiff is capable of raising loan from his parents and other relations; that the suit shop is reasonably and bonafidely

required for reconstruction in as much as accommodation will be increased by converting it into a double story structure which can be used by the

plaintiff and will also avoid likelihood of the danger to the property and the public life, as such the proposed construction shall be in the public

interest. That the respondent/plaintiff in order to settle himself in the life requires the suit shop for starting his own business. The

appellants/defendant has resisted the suit by filling the written statement, wherein he has dis puted the reasonable and bonafide requirement of the

suit shop by the respondent/plaintiff for reconstruction or rebuilding by stating that all necessary repairs in the suit shop has been carried out by him

at the instance of the father of the plaintiff. He has also disputed the reasonable and the bonafide requirement of the plaintiff for starting his own

business in the suit shop.

The parties went to the trial with the following issues :-

(i) ""Whether the plaintiff reasonably and bonafidely requires the suit shop for reconstruction purpose ? O.P.P.

(ii) In case issue No. 1 is proved in affirmative whether the proposed reconstruction shall be in public benefit ? O.P.P.

(iii) Whether the plaintiff reasonably and bonafidely requires the suit shop for his own personal use and occupation ? O.P.P.

(iv) In case issue No. 3 is proved in affirmative what shall be comparative advantages and disadvantage of the parties ?

O.P. Parties.

(v) In case of ejectment on the ground of personal necessity whether the partial eviction from the suit shop can meet the requirement of the plaintiff

and if so, whether the defendant is willing and ready for the same ?

O.P.Parties.

(vi) Relief.

The evidence both oral and documentary came to be offered by the parties before the trial court who came to the conclusion that the need of

the respondent/plaintiff for building and rebuilding the suit shop is both reasonable and bonafide and the proposed construction shall be in the

public benefit after holding that the suit shop needs reconstruction, that for carrying out the reconstruction, the respondent/plaintiff has submitted the

map of the proposed construction in this behalf to the Town Area Committee, Udhampur; that the suit shop is in Bazar where other shop in the

Bazar are also existing at the same level and that he has a capacity to raise money for reconstruction of the shop in question. The learned trial court

also came to the conclusion that the requirement of the respondent/plaintiff for the suit shop for his personal use and occupation is also bonafide

and reasonable. Accordingly, the trial court came to decree the suit after deciding all the issues in favour of the respondent/ plaintiff by the virtue of

his Judgment and decree dated 23-08-1999. This Judgment and decree recorded by the trial court came to be challenged before the Ist Appellate

Court, who on the consideration of the points raised before him in the appeal to the effect that the requirement of the suit shop is not established;

that under the prevention of Ribon Development Act which extends to the town of Udhampur wherein the suit shop is located no construction can

be raised with in 25 ft. from the centre of the road, therefore, if the suit shop is reconstructed, the size of it will get reduced, therefore, no public

benefit shall be served; that the plaintiff does not require the suit shop for his personal use and the Judgment and decree impugned is based on

wrong appreciation of evidence. On reappreciation of the evidence led by the parties before the trial court, The First Appellate Court came to

concur with the trial court to the effect that the suit shop is reasonably and bonafidely, required by the respondent/plaintiff for reconstruction after

holding that the respondent has already submitted the map of the proposed construction to the Town Area Committee, Udhampur for sanction

which lends support to the intention of the respondent/plaintiff to raise 1st Floor after demolishing the suit shop and that since the

respondent/plaintiff has submitted the map for sanction to the N.A.C. Udhampur, therefore, u/s 46-A of the Town Area Act, sanction shall be

deemed to have been granted and that respondent/plaintiff has sufficient funds to raise the construction, besides this he can approach the

commercial bank for raising loan. While dealing with the point that the Prevention of Ribon Development Act stands extended to the Town of

Udhampur, the Ist Appellate Court has observed that this plea is neither taken in the written statement nor any evidence has been led regarding this

aspect of the case. The Ist Appellate Court has also come to over set the finding of the trial court on issue No. 3 after holding that it is an admitted

fact that the respondent/plaintiff during the pendency of the case has secured a govt. Job and is posted in the office of the Deputy Commissioner

for the last more than a year. Therefore, the requirement of the respondent/plaintiff for his personal use and the occupation of the suit shop cannot

be said to be in existence after he has taken a Govt. Job. In the end learned Ist Appellate Court after re appraisal of the evidence led by the

parties, came to decide all the points except the Issue No. 3 in favour of the respondent/plaintiff and came to dismiss the appeal. The

respondent/plaintiff has assailed the finding of the Ist Appellate court with regard to Issue No. 3 by filling cross-Objections before this court. This

Judgment and order shall dispose of both appeal in hand and the cross-objection together.

Heard the learned counsel for the parties and perused the record.

In the memorandum of the appeal, the appellant has proposed the following questions of law :

(i) ""Whether the judgements of the court below suffering from mis-appreciation and non-appreciation of evidence on record, constitutes substantial

question of law and deserve to be decided by the 2nd appellate court u/s 100 C.P.C.

(ii) Whether the courts in deciding the matters in suit can waive the statutory requirements of law with wrong tests i.e. conditions of Municipal Act.

Town Planning and other requisites for the purpose of reconstruction.

(iii) Whether to claim a possession of suit property for reconstruction purposes, the landlord is not required to disclose his reasonable financial

capability to carry the construction plan commensurating to value.

(iv) Whether the courts below (both trial and Ist Appellate court) could conclude their findings even by travelling beyond the pleadings and

evidence on record in perversity ?

(v) Whether the enforcement of the provisions of Sec. 13 (3) of the J&K House and Shops Rent control Act protecting the tenants for re-

entry/prior offer to tenant by the landlord after reconstruction within time frame is sine quo non, while deciding the case by the courts below, when

the personal necessity of landlord is missing and whether the courts below fell in serious error in having the matter undecided ?

As regards the points 1 to 4, it is pointed out that the respondent/plaintiff and his witness PWS. Krishan Lal, Bansi Lal, Ram Krishan, Sham Lal

who is civil Engineer and Ashok Abrol who is also Jr. Engineer in the Public Works Department have with one voice deposed that the suit shop is

a kachha old construction and PWS. Krishan Lal, Bansi Lal and Ram Krishan have further deposed that it needs re-construction. Otherwise it will

collapse. This version of the plaintiff's evidence finds cor-roboration from the evidence of the defendant and DW Chuni Lal. It is also given in the

evidence of the plaintiff and said witness that the respondent/plaintiff wants to reconstruct the building on the suit shop and wants to convert it into

FirstFloor Building. It is also proved by the evidence of the plaintiff and his witness Vijay Kumar who is clerk in the Town Area Committee,

Udhampur and certificate marked as EXPWVK placed on the file by the plaintiff alongwith the map for the proposed construction for grant of

sanction in which title verification stands sought sa early as in the year 1982 stands submitted to the N.A.C. ,Udhampur much early to the

institution of the suit. Section 46-of the Town Area Act is very clear on the point that if the chairman of the committee neglects or omits, within

sixty days of the receipt from any person of a valid notice of such's person intention to erect or re-erect any building, the sanction for such erection

or re-erection shall be deemed to have been sanctioned. With respect to financial capacity of the plaintiff to carry out the reconstruction after

demolishing the suit shop, there is evidence on the file which stands duly considered by the courts below especially by the Ist Appellate Court after

regarding observation that the respondent is a govt. employee and can also raise the loan, therefore ,his financial capacity to raise proposed

construction cannot be doubted.

From the perusal of the record of the case the findings recorded by the court below are based on clear and congent evidence and are in no way

discrepant. It is well settled proposition of law that where finding of facts of the trial court are confirmed by the Ist Appellate Court. The High

Court cannot substitute his own finding or re-appreciate the evidence. So far as last point raised by the appellant is concerned, same is prematured

in terms of Section 13 of the J&K Houses and shops Rent Control Act, because the decree passed by the trial court has not upto this date

attained its finality. Therefore, none of the aforesaid points raised in this memorandum of the appeal can be said substantial question of law which

needs determination in Civil 2nd Appeal.

In the present case, both the courts below as indicated have taken a view and have reached to the clear finding of facts that the suit shop is in

delipidated condition which may collapse any movement causing threat both to the property and to human life. That the requirement of the

respondent/plaintiff for reconstruction of the suit shop is both bonafide and reasonable which shall be in the public benefits. That the plaintiff has

much early to the institution of the suit submitted a map of proposed construction to the Town Area Committee, Udhampur for sanction and the

sanction in this behalf shall be deemed to have been granted. That the respondent/plaintiff has and can raise the funds for demolishing and re-

constructing of suit shop. The plea that under the prevention of Ribbon Development Act, a person who intends to raise construction alongside any

road maintained by the Public Works Department or any other govt. Department can do so after leaving a specified distance from the centre of the

road. This being so, this plea is factual in nature cannot be decided without appreciation of evidence. This plea has not been raised by the appellant

in its written statement before the trial court, there is no issue in this behalf framed in suit nor any evidence has been led by the parties. There are

catena of authorities on the point that High court will not entertain the point of law raised for the first time in the civil 2nd Appeal when the point

cannot be decided without remaining the case for further evidence. There is no manner of doubt that High Court can exercise its Jurisdiction u/s

100 CPC only on the basis of substantial question of law. The question as to whether the finding of the facts recorded by the courts below is

against the weightage of evidence or not, is a question which will remain in the realm of appreciation of evidence and cannot be said to be

substantial question of law. (See AIR 1999 SCW 529). 9. Viewed thus, no question of law much -less any substantial question of law is raised in

this memorandum of appeal, therefore, the same is liable to be dismissed, consequently the cross-objections filed by the respondent/plaintiff pale

into insignificance.