Manish Shivhare vs Ranveer Singh Parihar & Ors

The instant second appeal u/S. 100 C.P.C. assails the finding of reversal whereby the first appellate court has passed a decree in favour of the

plaintiff/landlord of eviction on the ground of bonafide need of the son of the deceased landlord for doing business, after reversing the judgment

and decree of the trial Court dismissing the suit of the land lord.

Learned counsel for the rival parties are heard on the question of admission.

Learned counsel for the appellant/tenant by referring to various paragraphs of the impugned judgment of the first appellate court and also certain

parts of the pleadings especially paragraph Nos. 24, 25, 26 and 39 of testimony of Ranveer Singh (landlord) (PW-1) contends that the suit was

originally filed raising the bonafide need of the father Ranveer Singh (PW-1) who died during pendency of the first appeal. It is also contended that

there was incongruity between the statutory notice terminating the tenancy and seeking eviction on one hand and the plaint on the other, to the

extent that the notice assigned the bonafide need of the son to do business whereas the plaint assigned the bonafide need of the father as well as

son for seeking eviction. It is also further submitted that important factum of bonafide need and absence of any alternative suitable accommodation

within the territorial limits of the town of Gwalior could not be established by the landlord. Reliance is placed by the learned counsel for the

appellant/tenant on the decision of Apex Court in the case of Santosh Hazari Vs. Purushottam Tiwari reported in (2001) 3 SCC 179 for

emphasizing the principles to be followed while adjudicating second appeal in a case of reversal. The same authority is also relied upon for

reiterating the principles of law for framing substantial question of law u/S. 100 C.P.C.. It is submitted that the first appellate court while reversing

the judgment of the trial court must keep in mind two principles of law that in case of availability of findings of fact based on conflicting evidence,

the same must weigh in the mind of the appellate court and if the appraisal of evidence by the trial court suffers from material irregularity or is based

on inadmissible evidence or on conjuncture and surmises, the first appellate court ought to interfere.

Learned counsel for the respondent/landlord on the other hand referring to Para 12 of the judgment of the trial Court and as well as of the

appellate court submits that the plaint map is not in accordance with the statutory requirement under Order 7 Rule 3 CPC. It is further submitted

that the family settlement Ex.P-6 based on which the suit shop came to devolve upon the respondent/landlord, bestowed only two shops in favour

of the landlord one of which is the suit shop and other is occupied by Rajendra Gupta and therefore, the trial Court rightly came to the conclusion

that the respondent/landlord has no other alternative suitable accommodation within the territorial limits of the town of Gwalior. It is further

submitted that no substantial question of law arises in the present case since the reversal by the appellate court was on the findings of fact which are

based on cogent evidence on record.

After considering the arguments extended by the rival parties, this court is of the considered view that no substantial question of law is made out

in the present case for the reasons supra.

Learned trial judge while dismissing the suit for eviction filed by the respondent/landlord found the evidence adduced on record to be deficient to

prove any of the issues framed. The substantive deficiency in the plaint map to meet the bare minimum statutory requirement of Order 7 Rule 3

C.P.C. and the landlord having suppressed material fact of being in possession of an alternative vacant accommodation within the municipal limits

of Gwalior, weighed in the mind of the learned trial Judge to dismiss the suit. On the other hand, the first appellate court reversed the findings and

decreed the suit in favour of the landlord on the ground of Section 12 (1)(f) of the Madhya Pradesh Accommodation Control Act (for brevity ''the

Act''), bonafide need of the son of the landlord to do business, after upholding the findings of the trial court negativing relief sought u/S. 12 (1) (a)

of the Act by the landlord.

6.1 The first appellate court after marshelling the evidence especially the deposition of the deceased landlord Ranveer Singh and his son Gajendra

Singh Parihar found that there was conflicting evidence in regard to bonafide need of the landlord, to the extent that the landlord and his son

Gajendra Singh both testified and denied carry on business of milk dairy. Gajendra Singh Parihar (PW-2) in Para 38 has stated that he is doing

business of loading and unloading on contract and not of milk dairy whereas the said son of the landlord has also testified that he is unemployed.

The first appellate court noticed pleadings in Para 6 of the plaint containing pleadings regarding the bonafide requirement, which has been

reproduced in Para 25 of the impugned judgment. Per contra, the defendant/tenant denying the pleadings of the plaintiff/landlord though testified

that landlord and his son are doing dairy business but however the first appellate court noticed that the tenant could not produce any cogent

evidence, oral or documentary as to where and since when the said dairy business is being done by the plaintiff/landlord. The first appellate court in

Para Nos. 34 and 35 of the impugned judgment has dealt with the aspect of absence of any alternative accommodation in possession of the

landlord within the municipal limits of Gwalior town. After taking into account the family settlement Ex.P-6, the first appellate court came to the

factual finding that the shop which came to the share of plaintiff/landlord in the said settlement is the suit shop in which the defendant/tenant is in

possession, and there is no vacant alternative shop where the son of landlord can do business.

It seems that though the evidence produced by the landlord was not very clinching in respect of availability of alternative accommodation and the

bonafide requirement of the son to do business, but the quality of evidence brought on record by the landlord was enough to pass the test of

preponderance of probability. The burden which thus shifted upon the tenant to prove otherwise, could not be discharged and therefore, after

weighing and balancing the evidence brought on record, the appellate court came to the factual finding that the pleadings and evidence of the

landlord qua the ground of bonafide requirement of the son of landlord to do business is more convincing and therefore, passed the decree in

favour of the landlord on the said ground.

After having gone through the pleadings, evidence and the arguments advanced by the rival parties, I am of the considered view that no

substantial question of law is made out and therefore, this court at the admission stage itself dismisses the present second appeal without any cost.