Mohan Nath vs Ratan Lal

Pratap Krishna Lohra, J—Appalled by the impugned judgment and decree dated 31st of March 2012 passed by learned Addl. District Judge (Fast Track) No. 3, Jodhpur Metropolitan (for short, ''learned lower appellate Court''), appellants/plaintiffs have laid this second appeal. By the impugned judgment, the learned lower appellate Court has affirmed the judgment and decree dated 14.12.2004 passed by learned Civil Judge (Jr.Div.), Jodhpur City, Jodhpur (for short, ''learned trial Court''), whereby it has dismissed the suit of the appellants for eviction and arrears of rent.

The apposite facts of this appeal are that appellants are legal heirs of original plaintiff Mohan Nath, who filed a civil suit for eviction and arrears of rent against defendant Ratan Lal, whose legal heirs are respondents in the present appeal. As the original parties expired during the pendency of litigation before trial Court, their legal heirs were impleaded for them and have contested the litigation thereafter stepping into the shoes of their ancestors as successors. The case as set up by original plaintiff in the plaint was that he was owner of house situated in Phoolerao ki Ghati, Jodhpur for which Patta No. 22/49-50 was issued by the Secretary, Jodhpur Municipality in his name on 18th November, 1949. According to plaintiff, that house was let out to defendant Ratan Lal at a monthly rent of Rs. 20/- long back and as the tenancy was oral he was not in a position to say exactly about the month and year in which tenancy commenced. Further, according to plaintiff no receipt was given by him for the rent received and that defendant used to come to his house to pay rent after every 2-3 months but the defendant tenant did not pay rent for 13 months, i.e. from August 1986 to September 1987, as such defaulted in payment of rent. Further case of the plaintiff was that defendant constructed certain rooms and shops in the rented premises and let out the same to others without his permission which entailed the defendant liable for eviction on the ground of material alteration and subletting of the premises. The plaintiff stated that construction of shops and letting out same to others by defendant came to his notice only through one of his relatives who visited the premises somewhere in the month of March, 1987 and on coming to know about the said fact he sent registered notices to defendant on 3rd April 1987 and 7th September, 1987 respectively through his advocate which were duly served on defendant-tenant, however, he replied the notices incorrectly on 25th September 1987 denying the relationship of landlord and tenant between them.

The original defendant did not file written statement to the suit but after his death his Legal Representatives, the respondents herein, submitted written statement to the plaint on 11.07.1995 denying relationship of landlord and tenant between plaintiff and defendant as well as title of plaintiff in relation to the property in question. It was their case that the so called patta issued in the name of plaintiff was a forged one since the same did not tally the location and boundaries of the property in question. In the return, it was specifically averred that the property in question is in possession of defendant-respondents for last more than 50 years since the time of their ancestor Ratan Lal and they are in peaceful possession of it as its owners. The respondents emphasized that the construction on the disputed property was raised during lifetime of Ratan Lal and the electric and water connections stands in his name. It was asserted that neither there was existence of any tenancy, nor any rent transaction took place between original plaintiff and their ancestor Ratan Lal. Refuting the averment of monthly rent @ Rs. 20/- allegedly agreed by Shri Ratan Lal, respondents pleaded that the said property was owned by Late Shri Ratan Lal and as such there is no question of default in payment of rent by Late Shri Ratan Lal. Respondents on strength of these pleadings repudiated the suit of plaintiff for eviction from the premises and arrears of rent, and prayed for dismissal of suit with costs.

On the basis of pleadings of rival parties, the learned trial Court framed seven issues for determination. On behalf of the appellant-plaintiffs, in support of their case, witnesses PW1 Rajesh Nath, PW2 Suresh Nath and PW3 Sampat Raj were examined and documentary evidence Ex.1 to 7 were produced. In defence, defendant-respondents examined DW1 Chaitanya Prakash, DW2 Kahntilal and DW3 Sayarmal and exhibited 11 documents.

The learned trial Court on appreciation of the evidence available on record decided all the issues framed against appellants and in favour of respondents. The learned trial Court took cognizance of the inconsistencies and serious pitfalls in the evidence of appellants and considering the same to be unreliable, recorded findings against the appellants. The learned trial Court found that the plaintiffs have utterly failed to prove crucial issue in respect of their ownership of the premises which has obviously resulted in catastrophic for them to prove the relationship of landlord-tenant in between plaintiff and defendant. The learned trial Court further came to the conclusion that appellants also failed to prove other issues in relation to alteration and subletting of property as well as default in payment of rent etc. and finally, on the basis of conclusions arrived at, dismissed the suit.

Feeling dismayed with the judgment and decree of the learned trial Court, appellants approached the lower appellate Court, which in turn examined the matter afresh by re-appraisal of evidence and other materials available on record. Before the learned lower appellate Court, appellants also made endeavour to produce additional evidence by laying application under Order 41 Rule 27 CPC in the form of additional evidence and prayed for taking on record the certified copy of Patta Imarati register dated 18.11.1949 issued by Jodhpur Municipality. Upon examining the findings and conclusions of the learned trial Court, the learned first appellate Court fully concurred with the judgment of learned trial Court and affirmed the findings arrived at by the learned trial Court. The learned lower appellate Court has completely repudiated the theory of appellants that the disputed property, which is the subject matter of litigation, was of their ownership and arrived at the conclusion that the learned trial Court has not committed any error of law in passing the judgment and decree. The application under Order 41 Rule 27 CPC was also considered by the learned lower appellate Court while deciding the appeal and while rejecting the same recorded a definite finding that the learned trial Court has also examined the same but in want of any seal on the Patta found that it is not possible to infer that the same was issued by a competent authority. While declining the prayer of the appellants for taking additional evidence on record, besides findings of the learned trial Court, the learned lower appellate Court has critically examined the evidence tendered by appellants and recorded a definite finding that none of the witnesses of the appellants have been able to prove the author of the alleged Patta and therefore on the face of it the document is unreliable which is not liable to be taken on record at the appellate stage. The learned lower appellate Court has also opined that the appellants have failed to meet the requirements envisaged under Order 41 Rule 27 CPC for taking additional evidence on record at the appellate stage. Eventually, the learned lower appellate Court declined to interfere with the judgment and decree of the learned trial Court by dismissing the appeal.

Learned counsel for the appellants, Mr. R.K. Singhal, submitted that both the Courts below have committed serious error of law and fact in construing the evidence and materials available on record as there is sufficient material and evidence to substantiate the claim of appellants in respect of relationship of landlord and tenant and default in payment of rent. Learned counsel therefore submitted that both the Courts below have committed manifest error of law in discarding the evidence of the appellants and relying on wholly unreliable evidence of the respondents. Learned counsel submitted that if the entire material and evidence is properly scrutinized and considered, it would definitely lead to a different conclusion as such findings and conclusions of both the Courts below are perverse and infirm. Learned counsel for the appellants would contend that it is a clear case of misconstruing the evidence of appellants, therefore, the impugned judgment cannot be sustained.

Per contra, learned counsel for the respondents, Senior Counsel Mr. R.K. Thanvi with Mr. Narendra Thanvi submitted that learned trial Court as well as learned appellate Court has concurrently found that no relationship of landlord and tenant existed in between plaintiff and defendant and no default was committed by defendant-respondents in payment of rent as such concurrent finding of fact requires no interference by the second appellate Court. Learned counsel further submits that no substantial question of law arises in this appeal which is pre-requisite for maintaining second appeal. Learned counsel submits that both the learned Courts below, on appreciation of evidence and other materials on record, have discarded the claim of the appellants to establish relationship of landlord and tenant between rival parties with cogent reasons which is a just finding and cannot be categorized as infirm or perverse, therefore, not liable to be upset by exercising jurisdiction under Section 100 CPC.

I have heard learned counsel for the appellants as well as learned counsel for the respondents and perused the judgments rendered by both the Courts below so also scanned the record of the case.

Upon perusal of impugned judgment, there remains no quarrel that learned first appellate Court discussed all the issues framed by learned trial Court independently and after detailed discussions and consideration of the facts and evidence available on record, recorded concurrent findings upholding the findings of the trial Court on the issues in relation to relationship of landlord and tenant and default in payment of rent. Learned appellate Court on the basis of said finding dismissed the appellants'' appeal.

In the present matter, appellants lost the suit for eviction and recovery of arrears of rent in both the Courts below for their failure to discharge the burden. The suit was filed on the allegation that original plaintiff was exclusive owner of the property in dispute and original defendant was a tenant of the said property @ Rs. 20/- per month since unmemorable time as the tenancy was oral. The defendant-respondents contested the suit denying the relation of landlord and tenant between the parties and set up their own title in the suit property on the basis of old possession and other documents in their favour. In the suit, two crucial issues were formulated for adjudication, namely, (1) as to whether there existed any relationship of landlord and tenant between the parties? and (2) whether the plaintiff is owner of the suit property and entitle for eviction and possession. The Courts below concurrently held that the plaintiff-appellants failed to prove existence of any relationship of landlord and tenant between original plaintiff and defendant, therefore, defendant-respondents are not liable to be evicted or for payment of any rent to the plaintiff-appellants. The question of title of the appellant-plaintiffs was also decided against them and it was held that appellants failed to prove their title over the property in question as such are not entitle to evict defendant-respondents and recover possession. In connection with the title of the property, I considered it material to go through the plaint from the original record. A bare perusal of the plaint reveals that the entire cause of action is based upon relationship of landlord and tenant rather than on title. The suit appears to be simply for the eviction of tenant from the property in dispute on the ground of default in payment of rent, alteration, subletting etc., however, there are no definite pleadings or disclosure about commencement of tenancy or authentic title of the plaintiff-appellants proving their ownership and their title over the property in dispute. The plaintiff-appellants failed to show start of tenancy or issuance of any receipt for the rent received. The alleged Patta sought to be brought on record by filing an application for additional evidence before the first appeal under Order 41 Rule 27 C.P.C. to prove title over the land in dispute alleging that copy of the same was given to the advocate for filing the same before the Court below but on obtaining copies from the said Court it revealed that the same was not filed. The said application was rejected not being admissible at that stage. Furthermore, the learned lower appellate Court observed in its judgment that the witnesses of plaintiff admitted that plaintiff Mohan Nath never resided in the disputed property and referred to the decision cited by learned trial Court that ownership rights cannot be decided in a suit for eviction. The objection of appellants in respect of DW1 Chaitanya Prakash being grandson of defendant Ratanlal was also found to be baseless by the learned appellate Court. In regard to the relationship of landlord and tenant between the parties, it is the plaintiff-appellants who are alleging that the suit property was let out to the defendant and that he was in occupation of it as tenant from particular time, therefore burden to prove the same was squarely upon them which they failed to prove. Thus, the entire story that defendant was a tenant of original plaintiff stands completely falsified. It is admitted, on perusal of record, that the original plaintiff never asked the defendant to pay rent of the suit property to him, nor any rent receipt was produced and no evidence was adduced to prove as to when exactly the tenancy commenced. Neither any agreement of tenancy nor any rent note was produced in evidence to prove the said relationship. In brief, no evidence was produced to show that the defendant-respondents are in occupation of the suit property as a tenant and therefore question of default in payment of arrears does not arise at all in the facts and circumstances of the case.

The Courts below on these reasonings rightly returned a finding of fact that the plaintiff-appellants have failed to prove relationship of landlord and tenant between original plaintiff and original defendant which may entitle them to a decree of eviction against defendant-respondents and for arrears of rent.

The findings on the above issue are pure findings of fact and the Courts below have not erred in placing the burden to prove the said relationship upon the plaintiff who had come up with the said case. There appears to be no perversity in the findings recorded by the Courts below in this regard.

In view of the aforesaid facts and circumstances, I am of the view that this appeal stands concluded by concurrent findings of fact recorded by the two Courts below and does not give rise to any substantial question of law.

Accordingly, the appeal is dismissed being devoid of merit.