Nirmla Dixit vs Suresh Kumar Jain

Rohit Arya, J.—This appeal by defendants is directed against the judgment and decree dated 19/7/2006 in Civil Appeal No. 13-A/2006 confirming the judgment and decree dated 5/12/2005 in Civil Suit No. 145-A/2004.

Plaintiff-Suresh Kumar Jain filed civil suit No. 145-A/2004 inter alia contending that plaintiff is the tenant of defendant no. 1-Babulal Jain in respect of the suit premises where on the ground floor a shop and two rooms, kitchen, lavatory, bathroom and an open courtyard are situated near old bore-well, Tyagi Nagar, Morar, Gwalior (hereinafter referred to as the suit premises) of which defendants no. 1 and 2 are owners. Tenancy commenced since 25/5/2000. Plaintiff is carrying on a small grocery store on the part of the suit premises and residing with his family on the remaining part of the premises as described above on monthly rent of Rs. 200/- for the shop and Rs. 500/- for the residential premises. The suit shop admeasures 9X10 ft. As per plaint averments, defendants always intended to dispossess the plaintiff forcibly hurling abuses and threatening for dire consequences. Therefore, plaintiff filed a report before the police in police station on 17/9/2001, however, nothing turned thereupon and, therefore, having no other option to avoid threat to the life and violence, plaintiff had given vacant possession of the residential portion of the suit premises on 15/11/2002 as desired by the defendants. However, plaintiff continued to occupy the suit shop on monthly rental basis. Plaintiff has paid rent upto February, 2003 in person and thereafter for the following months on refusal by defendants had sent the rental amount through money-order, however, the same was also refused. In the morning hours of 23/4/2003 while plaintiff had gone to open his shop, he found that the lock of the shop was broken and appellants/defendants had put up their own lock. Thereafter, it came to the knowledge of the plaintiff that in the intervening night of 22-23/4/2003 appellant/defendant no. 1 had broken the lock and removed the items kept in the shop, counter, furniture and dumped the same on the terrace. As no action was taken by the Police Department on his report filed earlier, the plaintiff filed a Writ Petition No. 1554/2003 before the High Court. The High Court vide order dated 23/6/2003 had disposed of the writ petition with direction to the police to take action on the report of plaintiff in accordance with law. Thereafter, on 24/7/2003, FIR was registered for investigation. With the aforesaid facts, plaintiff filed the instant suit for declaration, permanent injunction and also for restoration of possession against defendants.

Defendant no. 1 by filing written statement denied plaint averments inter alia contending that the FIR lodged by the plaintiff was on false allegations. Plaintiff has voluntarily vacated the suit premises on 15/11/2002 including the suit shop. Defendants have not taken forcible possession, as alleged. With the aforesaid averments in the written statement, suit was prayed to be dismissed. Defendant no. 2 also filed written statement and submitted that on 18/9/2003 she has purchased the suit property for a consideration of Rs. 7,20,000/- by registered sale deed and possession thereof was delivered to the defendant no. 2 at the time of agreement to sale dated 28/2/2003. As such, she claimed to be in possession of the suit house and shop. With the aforesaid pleadings, defendant no. 2 also prayed for dismissal of the suit.

On aforesaid pleadings, trial court framed issues and allowed the parties to lead evidence. Upon critical evaluation of entire evidence on record with due advertence to the pleadings of the parties, trial court dismissed the suit holding that plaintiff has been forcibly dispossessed on 22/4/2003 from the suit shop and defendant no. 2 was put in possession thereof. Hence, plaintiff having been forcibly dispossessed is entitled for restoration of possession. On appeal, first appellate court has re-considered the factual matrix of the case with due advertence to the evidence on record and concurred with the findings of facts as regards forcible dispossession and alleged execution of sale deed in favour of defendant no. 2. While discussing the evidence, it is found that the fact of forcible dispossession as stated by PW-1 is corroborated by the evidence of PW-2 and that of defendants'' witness Giriraj Sharma. There is no evidence to the contrary on record. In view of the aforesaid, the first appellate court confirmed the judgment and decree passed by the trial court and dismissed the suit.

Having gone through the impugned judgments on record, this Court is of the view that the courts below have recorded impregnable findings of facts based on proper appreciation of evidence on record. The entire gamut of the matter is in the realm of facts. No question of law much less substantial question of law arises in this appeal warranting interference u/s 100 of CPC. The Second Appeal sans merits is hereby dismissed.