Radhey Sham vs Tara Chand

B. Rai, J.—Facts, in brief are that Radhey Sham appellant and Tara Chand respondent, residents of Kaithal are real brothers Radhey Sham was serving in Haryana State Electricity Board. It is undisputed that in the family partition, shop in dispute situated in Bazar Arijanwise Kaithal, fell to the share of Radhey Sham. According to Radhey Sham while he was in service, on the demand of his brother Tara Chand, shop was given to him as a licensee. After Radhey Sham retired from service he demanded back the vacant possession of the said shop from Tara Chand. On his refusal to do so, Radhey Sham filed a suit seeking mandate against Tara Chand to hand over the vacant possession of the shop. Tara Chand, however, took up the stand that he was a tenant in the said shop and not a licensee. The suit filed by Radhey Sham was dismissed by the trial Court vide judgment and decree dated May 4, 1987.

Feeling aggrieved, Radhey Sham filed an appeal against the said judgment and decree which was heard by the Additional District Judge, Kurukshetra who finding no merit in the appeal dismissed the same vide his judgment and decree, dated September 16, 1988.

Undaunted by the decision of both the Courts below Radhey Sham has come up to this Court in this Regular Second Appeal.

I have heard the learned counsel for the parties and have carefully gone through the record.

The learned counsel for the appellant referred to bahi entries Exhibits P1 to P59 maintained by Tara Chand and also to the applications u/s 21 of the Haryana Urban (Control of Rent and Eviction) Act 1973 Exhibits P60 and P61 filed by the parties before the Sub Divisional Officer (the then Rent Controller) Kaithal and while making a brief reference to the evidence, contended that there is not sufficient evidence on the record to prove that Tara Chand was inducted as a tenant by Radhey Sham in the shop in dispute. According to him, in fact, Tara Chand was put in possession of the said shop as a licensee by Radhey Sham on his asking and now Radhey Sham has retired and is in need of the said shop to run his own business. It was also half-heartedly argued that the entries Exhibits P1 to P59 in the bahis maintained by the respondent cannot be read as admissible evidence against the appellant.

On the other hand, the learned counsel for respondent Tara Chand has made an attempt to refute the contentions raised by the learned counsel for the appellant.

From the contentions raised by the learned counsel for the parties, the sole question that arises for determination is "whether Tara Chand is in possession of the shop in dispute as a licensee or a tenant under Radhey Sham?"

It is not disputed that the evidence led by both the parties was thoroughly examined and appreciated by both the Courts below who found as a fact that Tara Chand was in possession of the shop in dispute as a tenant on a monthly rent of Rs. 65/- under Radhey Sham and not as a licensee. To well appreciate the rival contentions it would be appropriate to advert to the provisions of Section 100 of the Code of Civil Procedure, relevant portion of which reads as under :-

"100. Second appeal-(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2).....................................

(3).....................................

(4) Where the High Court is satisfied that a substantial question of law is involved in any case it shall formulate that question.

(5) The appeal shall be hearing on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question.

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."

Provisions of Section 100 of the Code reproduced above came to be considered by their Lordships of the apex Court in Madamanchi Ramappa and Another Vs. Muthalur Bojjappa, wherein it has been observed as under :-

.............The admissibility of evidence is no doubt a point of law, but once it is shown that the evidence on which Courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the courts of fact to contend before the High Court in second appeal that the said evidence is not sufficient to justify the findings of fact in question. It has been always recognised that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the Court of facts and cannot be agitated in a second appeal."

There is nothing to show that question of admissibility of evidence was raised before the Courts below and that was not taken into consideration. Therefore, the contention in that regard cannot be allowed to be raised for the first time in Regular Second Appeal. It is not the case of the appellant that any substantial question of law is involved. The learned counsel for the appellant has not been able to show as to how the documentary evidence led by the respondent is not admissible in evidence. I also do not find that the documentary evidence in the form of bahi entries Exhibits P1 to P-59 and applications Exhibits P60 and P61 is not admissible in evidence. Reference may also be made to a recent decision of the Supreme Court in Ramanuja Naidu Vs. V. Kanniah Naidu and anothers, wherein following observations were made :-

"We are of the view, that in interfering with the concurrent findings of facts of the lower courts the learned Single Judge of the High Court acted in excess of the jurisdiction vested in him u/s 100 of the Civil Procedure Code. The learned Judge totally erred in his approach to the entire question and in reappraising the reappreciating the entire evidence, and in considering the probabilities of the case, to hold that the judgments of the Courts below are "perverse" and that the plaintiff is entitled to the declaration of title to suit property and recovery of possession."

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In view of the well settled position of law, it would neither be proper nor justified for this Court to go into the concurrent findings of fact arrived at by both the courts below especially when no substantial question of law is involved in this appeal.

In the light of the above, this appeal must fail and is hereby dismissed. No costs.