RAVsI DEEP vs SATYA PAUL

Instant appeal has been filed seeking setting aside of judgment dated 31.03.2016 passed by the Court of learned Principal District Judge, Udhampur,

whereby the Civil First Appeal filed by the appellant against the judgment and decree of learned trial Court has been dismissed.

The facts in brief as projected in this appeal are that plaintiffrespondent herein had filed a civil suit for ejectment of the defendant-appellant herein

from two number of shops situated at Ward No. 2 Adarsh Colony, Udhampur (hereinafter referred to as suit shops) on the ground of personal

necessity claiming, inter alia, that he has retired from Government service and getting monthly pension of Rs. 15,000/- and in order to augment the

income, he intends to start business of his own in the suit shops for which he reasonably and bona fidely requires the suit shops for his personal

necessity. Plaintiff-respondent herein got retired from the Government service about 17 years prior to institution of the suit and is of about 75 years of

age and one of his daughters, who is since married and permanently residing at Delhi has become handicapped some 17 years back and is financially

weak and, therefore, to support his said daughter, he wants to start the business in the suit shops with a purpose of enhancing her income and to

support her financially. Plaintiff-respondent herein has further pleaded that his comparative disadvantage as compared to the defendant-appellant

herein is much more, in case of denial of eviction decree in his favour on the ground that the defendantappellant herein is not conducting any business

in the suit shops but the same remain closed and he instead has been conducting his business in another shop situated at Main Bazaar, Udhampur, and

apart from this, he has also many other shops in his possession. Regarding partial eviction, it has been alleged by the plaintiffrespondent herein that he

needs both the suit shops and, therefore, question of partial eviction does not arise.

On being put to notice, the defendant-appellant herein appeared before the court of learned Sub Judge, (Special Mobile Magistrate) Udhampur, and

filed his written statement. Learned Sub Judge (Special Mobile Magistrate), Udhampur, after filing of written statement by the defendant-appellant

herein, proceeded to frame the issues for determination. After framing of issues, both the parties led the evidence in support of their respective claims.

The learned Trial Court took into consideration the evidence adduced by the parties, their respective pleadings and heard the arguments advanced by

the learned counsels for the parties in support of their respective claims and as a consequence of which, passed the judgment and decree dated

31.10.2015 whereby the suit filed by the plaintiff-respondent herein has been allowed by decreeing the same in favour of the plaintiff-respondent

herein and against the defendant-appellant herein.Â

Being aggrieved defendant-appellant herein filed Civil First Appeal before the Court of learned Principal District Judge, Udhampur, which came to

be dismissed vide judgment and decree dated 31.03.2016. Hence, the instant appeal on the following grounds :-

(i) That the 1st appellate Court has failed to appreciate that the findings returned by the learned trial Court on issue No.1 pertaining to reasonable and

bona fide personal necessity of respondent is the most material and decisive question in controversy involved in the suit and made the appellant liable

to discharge the burden of proof on this issue. However, it was respondent who had to prove this issue which has not been done and respondent has

miserably failed to prove his reasonable and bona fide necessity of the suit shops. The plea of personal necessity of the respondent qua the suit shops

on the very face of the evidence and material brought on record, was prima facie fallacious, ingenuine and concocted. Similarly, the plea that one of

his daughters, namely, Sunita Reshi, is handicapped and financially dependent upon him, has also not been proved to the complete satisfaction of the

learned Trial Court as the said plea was totally false and incorrect. Further the respondent has failed to adduce any substantive, convincing and

satisfactory evidence to explain as to which were those new material facts and change of circumstances which necessitated and compelled him to file

the civil suit for eviction after ten years from his retirement and becoming his daughter so call handicapped and not earlier to that. In absence of any

such explanation and credible evidence respondent cannot be said to discharge the burden of proof qua genuine, reasonable, honest and bona fide

personal necessity of the suit shops after long period of ten years. All these pleas urged by the respondent were prima facie proved to be false,

without any substance and could not have been believed by the learned trial Court.

(ii) That the learned Trial Court has failed to decide issue No.2 regarding comparative advantage and disadvantage of the parties and has erroneously

decided the said issue without proper application of mind and deliberation and also without proper discussion and appreciation of evidence and material

on record but has based his findings merely on assumptions and conjectures without any real and credible proof. Learned Trial Court as is apparent

from the bare perusal of the findings returned on Issue No.2 has based the findings merely on assumptions, conjectures and surmises and merely

relying upon the verbal evidence of respondent and his related and interested witnesses without any documentary proof. The trial court has not even

considered and properly appreciated the substantive and reliable evidence adduced in this regard in rebuttal by the appellant. The trial court has

misconceived and misconstrued the whole evidence and material on record and returned the findings on this issue no.2 illegally and erroneously

without properly discussing and appreciating or even considering the evidence of the appellant adduced by him relating to this issue. The findings

returned by the learned Trial Court were highly perverse and contrary to the legal position.

(iii) That the learned 1st appellate Court has further failed to appreciate that the learned Trial Court has erroneously decided the issue No.3 pertaining

to partial eviction without there being any substantive evidence and material on record and also without making any proper appreciation of the

evidence on this issue. It is pertinent to mention that eviction suit relates to two shops and if at all as per the conclusion of the trial Court, the issues 1

and 2 were held to be proved in favour of respondent, it was the legal and statutory obligation on the part of the learned Trial Court to independently

decide the issue no.3 regarding partial eviction on the basis of proper appreciation of the evidence and material brought on record by the parties. The

findings returned by the trial court on issue no.3 were quite erroneous on the face of the records.

(iv) That the learned 1st appellate Court has failed to appreciate that the suit filed by the appellant was decreed by the learned Trial Court without

returning cogent and convincing findings and the findings which have been returned are ex-facie contrary to the pleadings put across by the parties.

The appellant has specifically pleaded before the learned trial court as also before the learned Ist appellate court that the respondent is in advance age

of his life and has intended to sell out the suit shops instead of running a business. The learned trial court as well as learned Ist appellate court has not

taken any pain to notice whether the respondent, who has since settled in Delhi along with his family and in view of his such an advance age of the

life, will come to Udhampur to run business from the suit shops when he due to all the attending circumstances, is highly incapacitated.Â

(v) That the appellant requires the suit shops for running his business and earning his livelihood. His necessity as compared to the respondent was

much deeper than that of the respondent. The appellant does not have any other shops as was alleged by the respondent. Even the evidence adduced

by the appellant in rebutting the claim of the respondent with respect to appellant having more shops has not at all been considered nor any findings

returned by the learned Courts below.Â

(vi) That the learned trial Court as also the learned Ist appellate court has not properly and effectively considered the comparative advantages and

disadvantages in case of ejectment of the appellant from the suit shops. The findings returned by the learned Trial Court were highly perverse and

contrary to the legal position

(vii) That the learned Ist appellate Court has further failed to appreciate that by upholding the judgment and decree dated 31.10.2015, the appellant has

been put to a very precarious position inasmuch as the appellant is having the grave necessity as compared to the respondent.Â

It is contended on behalf of respondent that respondent is a retired person and wants to run his own business in the suit shops and reasonably and

bona fidely require for his own use and occupation. Despite his request, defendant-appellant did not accede to his request to vacate the suit shops. It is

contended that the defendantappellant is not conducting any business in the suit shops but both the shops are under his lock and key. It is further

contended that daughter of the plaintiff-respondent herein, namely, Sunita Rishi is handicapped though she is married but she is financially and totally

dependent on the plaintiff-respondent herein. The pension of the plaintiff-respondent herein is not sufficient to meet the expenses of his family. The

plaintiff-respondent herein wants to augment his income by running his own business in the suit shops, therefore, the suit shops are reasonably and

bona fidely required by the plaintiff-respondent herein for his own use and occupation. It is further contended that plaintiff-respondent herein needs

both the shops for conducting his business in the suit shops and his need cannot be satisfied by a partial eviction of the defendant-appellant herein from

the suit shops. It is also contended that the plaintiffrespondent herein is ready to refund the security of Rs.1,00,000 to the defendant at the time of

vacating the suit shops. In case of passing of an eviction decree against the defendant-appellant herein, he will not suffer any disadvantage because he

is already conducting his business in a shop at Main Bazar, Udhampur and he has his three shops adjoining to his house and other seven shops in

Adarsh Colony, Udhampur and there are number of shops which are easily available in the market and the defendant-appellant herein can easily find

out an alternate accommodation on rent in Udhampur town, if he makes serious and honest efforts in this direction, but in case of refusal of eviction

decree the plaintiffrespondent herein will comparatively suffer more disadvantage than the defendant-appellant herein.Â

Heard learned counsel for the parties and perused the record.

Instant appeal has been preferred against the judgment dated 31.03.2016 passed by the learned Principal District Judge, Udhampur whereby Civil

Ist Appeal filed by the appellant against the judgment and decree dated 31.10.2015 passed by the learned trial Court, has been dismissed. Initially a

suit for ejectment of appellant, Ravi Deep, was filed by respondent-owner, which came to be decreed in favour of the respondent-owner. Civil First

Appeal preferred against the said judgment also came to be dismissed vide judgement dated 31.03.2016. The suit was filed on the ground of personal

necessity, in which appellant filed his written statement. The facts, which are not in dispute are that the plaintiff-respondent herein is the owner as well

as the landlord of defendant-appellant herein in respect of the suit shops. From the pleadings of the parties, following issues were framed:-

 ""i) Whether the plaintiff reasonably and bonafidely requires the suit shops for his own use and occupation to augment his income in order to meet

his family expenses? OPP

ii) What would be the comparative advantages and disadvantages   of the parties in case of grant of eviction decree? OPP Parties

iii) Whether the need of the plaintiff can be met by partial eviction of the defendant from the suit shops? OPP Parties iv) Relief OPP.

Plaintiff-respondent here in support of his case, besides himself, examined PW-Yash Pal, PW-Sanjay Sharma, PW-Akshay Kumar, PW-Bansi Lal

whereas the defendant-appellant here in support of his case, besides himself, submitted affidavits of DW-Kashmir Chand,DW-Vinod Kumar, DW-

Akash Chander and DW-Ajay Gupta.

Learned trial Court, after analysing in depth the evidence led by the parties, held vide judgement dated 31.10.2015 that the suit shop is reasonably

required by the plaintiff for his personal use and occupation and the personal necessity of plaintiff is greater than that of the defendant and further held

that partial eviction will not suffice the purpose of the parties and proceeded to decree the suit for eviction of the defendant from the suit shop in

favour of the plaintiff.

Learned counsel for the defendant has argued that the learned First appellate Court and the trial Court have failed to appreciate the facts in the

right perspective and that the learned trial Court committed error of law in appreciating the scope of Section 11(1) (h) of the J&K Houses and Shops

Rent Control Act. It has been argued on behalf of learned counsel for appellant/defendant that plaintiff has been residing in Delhi where he has his

own Flat and very seldom visits Udhampur and the plea taken by the plaintiff regarding his requirement of suit shops on the ground that his daughter

Sunita Rishi is handicapped and financially dependent upon him and therefore, he requires the suit shops to increase the income to look after the

family, is a concocted plea and has been put forth to unfairly evict the defendant from the suit shops. Learned counsel for the appellant has

constricted his arguments to the ground that notice required under Section 106 of the Transfer of Property Act was not issued. He further contends

that substantial question of law arises for consideration in the instant appeal and the substantial question of law is, as to whether, respondent, as owner

could not seek determination of the lease of the two shops under the tenancy of appellant, without complying with Section 106 of the Transfer of

Property Act. Accordingly, learned counsel argued that following substantial question of law arises in the appeal and the same be framed and the

appeal be admitted and decided on the said question.Â

“Whether it is a requirement of law that even in areas to which the J&K Rent Control Act is applicable, a notice in terms of section 106 of the

Transfer of Property Act would be required to be given to a tenant determining his lease and seeking his ejectment.â€​

On the other hand, learned counsel for the plaintiff-respondent herein while supporting the impugned judgments and decree, has insisted that the

same have been passed in accordance with the facts of the case as well as legal principle of law. Learned counsel further avers that evidence on

record is to be appreciated on the principle of preponderance of evidence and has been rightly appreciated in the instant case. Learned counsel further

contends that evidence on record clearly proves the case of plaintiff that he has meagre source of earning in the shape of pension which is insufficient

since he has to look after his handicapped daughter, Sunita Rishi, and therefore, has an urgent need of the suit shops. Learned counsel for the plaintiff-

respondent vehemently opposes the appeal, by strenuously contending that the concurrent findings, recorded by the trial Court and the first appellate

Court, are not liable to be interfered with on the plea that the appellant has never raised the plea of non-compliance of Section 106 of the Transfer of

Property Act before both the Courts nor in his written statement not to speak of in the memo of appeal before learned 1st Appellate Court, therefore,

not raising the plea during trial amounts to admission on the part of the appellant that requirement of Section 106, at this belated stage cannot be made

use of by him. The general principle is that the appellate Court should not travel outside the record of the lower Court and cannot take any evidence in

appeal. Appellate Court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Learned

counsel for the respondents contends that no interference is permissible against the concurrent findings of the fact in civil second appeal and the

ground of personal necessity. Learned counsel for the respondent relies on judgments reported in (2013) 6 SCC 270 titled Anamika Roy v. Jatindra

Chowrasiya and others, (2016) 10 SCC 209 titled Bhupinder Singh Bawa v. Asha Devi, and (1979) 1 SCC 273 titled Mst. Bega Begum and others v.

Abdul Ahad Khan and others to contend that no notice in terms of Section 106 of the Transfer of Property Act would be required to be given to a

tenant where the case is governed by the afore-stated Act.Â

Supreme Court while dealing with an issue in Kalyan Singh Chouhan v. C.P.Joshi, AIR 2011 SC 1127 after placing reliance on a very large

number of its earlier judgments, held that relief not found on the pleadings cannot be granted. A decision of a case cannot be based on grounds outside

the pleadings of the parties. No party can be permitted to travel beyond its pleadings and that all the necessary and material facts should be pleaded by

the party in support of the case set up by it. It was further held that where the evidence was not in line with the pleadings and is at variance with it,

the said evidence cannot be looked into or relied upon.

So far as framing of issue as aforesaid is concerned, such an issue has already been considered by the Seven Judge Bench of the Supreme Court

reported as (1979) 4 SCC 214 titled V. Dhanapal Chettiar v. Yesodai Ammal. It would be appropriate to reproduced paragraphs Nos 5 , 6 and 7

hereas under:-

Under the Transfer of Property Act the subject of “Leases of Immovable Property†is dealt with in Chapter V. Section 105 defines the lease,

the lessor, the lessee and the rent. Purely as a matter of contract, a lease comes into existence under the Transfer of Property Act. But in all social

legislations meant for the protection of the needy, not necessarily the so-called weaker section of the society as is commonly and popularly called,

there is appreciable inroad on the freedom of contract and a person becomes a tenant of a landlord even against his wishes on the allotment of a

particular premises to him by the authority concerned. Under section 107 of the Transfer of Property Act a lease of immovable property from year to

year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. None of the State Rent Acts has

abrogated or affected this provision. Section 108 deals with the rights and liabilities of lessors and lessees. Many State Rent Acts have brought about

considerable changes in the rights and liabilities of a lessor and a lessee, largely in favour of the latter, although not wholly. The topic of Transfer of

Property other than agricultural land is covered by Entry 6 of List III in the Seventh Schedule to the Constitution. The subject being in the Concurrent

List, many State Rent Acts have by necessary implication and many of them by starting certain provisions with non-obstante clause have done away

with the law engrafted in section 108 of the Transfer of Property Act except in regard to any matter which is not provided for in the State Act either

expressly or by necessary implication.Â

Section III deals with the question of determination of a lease, and in various clauses (a) to (h) methods of determination of a lease of immovable

property are provided. Clause (g) deals with the forfeiture of lease under certain circumstances and at the end are added the words ""and in any of

these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease."" The notice spoken of in clause (g)

is a different kind of notice and even without the State Rent Acts different views have been expressed as to whether such a notice in all cases is

necessary or not. We only observe here that when the State Rent Acts provide under what circumstances and on what grounds a tenant can be

evicted, it does provide that a tenant forfeits his right to continue in occupation of the property and makes himself liable to be evicted on fulfillment of

those conditions. Only in those State Acts where a specific provision has been made for the giving of any notice requiring the tenant either to pay the

arrears of rent within the specified period or to do any other thing, such as the Bombay Rent Act or the West Bengal Rent Act, no notice in

accordance with clause (g) is necessary. A lease of immovable property determines under clause (h):-Â

On the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.

It is this clause which brings into operation the requirement of section 106 of the Transfer of Property Act. Without adverting to the effect and the

details of waiver of forfeiture, waiver of notice to quit, relief against forfeiture for non-payment of rent etc. as provided for in sections 112 to 114A of

the Transfer of Property Act, suffice it to say that under the said Act no ground of eviction of a tenant has to be made out once a contractual tenancy

is put to an end by service of a valid notice under section 106 of the Transfer of Property Act. Until and unless the lease is determined, the lessee is

entitled to continue in possession. Once it is determined it becomes open to the lessor to enforce his right of recovery of possession of the property

against him. In such a situation it was plain and clear that if the lease of the immovable property did not stand determined under any of the clauses (a)

to (g) of section 111, a notice to determine it under section 106 was necessary. But when under the various State Rent Acts, either in one language or

the other, it has been provided that a tenant can be evicted on the grounds mentioned in certain sections of the said Acts, then how does the question

of determination of a tenancy by notice arise? If the State Rent Act requires the giving of a particular type of notice in order to get a particular kind of

relief, such a notice will have to be given. Or, it may be, that a landlord will be well advised by way of abundant precaution and in order to lend

additional support to his case, to give a notice to his tenant intimating that he intended to file a suit against him for his eviction on the ground mentioned

in the notice. But that is not to say that such a notice is compulsory or obligatory or that it must fulfill all the technical requirements of section 106 of

the Transfer of Property Act. Once the liability to be evicted is incurred by the tenant, he cannot turn around and say that the contractual lease has

not been determined. The action of the landlord in instituting a suit for eviction on the ground mentioned in any State Rent Act will be tantamount to an

expression of his intention that he does not want the tenant to continue as his lessee and the jural relationship of lessor and lessee will come to an end

on the passing of an order or a decree for eviction. Until then, under the extended definition of the word 'tenant' under the various State Rent Acts, the

tenant continues to be a tenant even though the contractual tenancy has been determined by giving a valid notice under section 106 of the Transfer of

Property Act. In many cases the distinction between a contractual tenant and a statutory tenant was alluded to for the purpose of elucidating some

particular aspects which cropped up in a particular case. That led to the criticism of that expression in some of the decisions. Without detaining

ourselves on this aspect of the matter by any elaborate discussion, in our opinion, it will suffice to say that the various State Rent Control Acts make a

serious encroachment in the field of freedom of contract. It does not permit the landlord to snap his relationship with the tenant merely by his act of

serving a notice to quit on him. Inspite of the notice, the law says that he continues to be a tenant and he does so enjoying all the rights of a lessee and

is at the same time deemed to be under all the liabilities such as payment of rent etc. in accordance with the law.â€​

What emerges from above is that non-issuance of notice under Section 106 does not and will not preclude a landlord for all times to come from

exhorting eviction of tenant inasmuch as the Supreme Court indubitably held that such notice is not compulsory or obligatory or that it must fulfill all the

technical requirements of Section 106 of the Transfer of Property Act.

Learned counsel for the plaintiff has based his relief on Section 11(1) (h) of Houses and Shop Rent Control Act, which lays down that a landlord is

entitled to decree for recovery of possession of his shop where the shop is reasonably required by him either for the purposes of building or rebuilding

or for his own occupation or for the occupation of any person for whose benefit the shop is held. On the other hand, defendant has admitted plaintiff-

respondent herein as his landlord but has taken the stand that plea of personal requirement made by the plaintiff is patently false and is a ruse to evict

the defendant from the suit shops so as to sell the suit shops, since the plaintiff lives in Delhi and has no intention of returning to Udhampur to do the

business of hardware and that plaintiff has no personal necessity for evicting the defendant from the suit shop.Â

It is on record that the statements of plaintiff and his witnesses remain unchallenged. No effective cross-examination has been preferred by

defendant-appellant of the plaintiff-respondent and his witnesses and therefore the testimony and evidence are conclusive. It is a settled principle of

law that if a witness is not crossexamined on any material point deposed by him in examination-inchief, the necessary inference is that the adversary

does not mean to challenge that version given by the witness in examination-inchief. In that event, the version so given by the witness in examination-

in-chief must be accepted as truthful.Â

Looking to the facts of the case as well as the evidence adduced by the parties, the finding of the learned Courts below that the plaintiff requires

the suit shops reasonably and bona fidely to increase his income to meet the financial constrains more so the expenditure incurred by him on his

handicapped daughter, Sunita Rishi, cannot be faulted with. The case of the plaintiff as surfacing in his pleading and in the evidence adduced by

him, is that he needs the suit shops for starting a hardware and sanitaryware business to meet the expenses of his handicapped daughter, which he is

unable to do on his pension and thus need of plaintiff is more than that of the defendant. On the other hand, perusal of the statement of the defendant-

appellant nowhere makes mention that his disadvantage would be more than that of plaintiff, in case decree for his eviction from the suit shops is

passed. There is no mention in his written statement that he made attempt to get any other shop on rent in Udhampur Town.

With regard to contention of the appellant that the findings are perverse and also sans merit, as from the above discussion, it cannot be held that

the findings recorded by both the courts below are perverse on the anvil of the judgments passed by the Apex Court in various cases as these findings

are neither recorded ignoring any material evidence nor acted on no evidence. It can also not be held that the courts below have drawn wrong

inference by complying the law erroneously or have wrongly shifted the burden.Â

On the contrary respondent has maintained that the Courts below have recorded concurrent findings of fact that no suitable accommodation was

available for running business of hardware by her handicapped daughter and have rightly passed an eviction order in favour of the respondent. More

so, the respondent cannot be dictated the terms of occupation of his self-owned properties. Both the courts below have allowed the eviction

proceedings preferred by the respondent against the appellant on the ground of bona fide requirement by recording concurrent findings.Â

It is well settled law that the concurrent findings of fact of the trial Court and first appellate Court cannot be interfered with by this Court unless

findings are perverse. Relying on the judgments passed by the Apex Court in the various cases, this Court is of considered opinion, that as the

judgment of the trial Court is based purely upon the finding of facts which have been affirmed by the first appellate Court. The concurrent findings

recorded by the Courts below are based on evidence and materials on record. I am of the view that the judgment of the trial Court is based upon

purely finding of facts which have been affirmed by the first appellate Court.Â

In view of the aforesaid facts and considering the material on record, in the opinion of this Court, the arguments advanced by the appellant cannot

be countenanced in exercise of jurisdiction under section 100 of CPC. Entire gamut of matter is in the realm of facts. Findings recorded by the Courts

below are impregnable in nature. No question of law muchless substantial questions of law arising warrant interference under Section 100 CPC. I

do not find any infirmity warranting interference with the impugned judgments.

Accordingly, instant appeal is dismissed along with connected MP(s).

Registry to return the record to the Court below along with copy of this order.