Raj Kumar vs Smt. Shanta Devi and Others

Kailash Chandra Joshi

This civil second appeal u/s 100 of the C.P.C. has been preferred by the appellant-defendant being aggrieved by the judgment & decree dated 5.7.2007 passed by learned Additional District Judge No. 2, Bhilwara in Civil Appeal No. 3/2006, whereby the learned lower appellate court dismissed the appeal filed by the appellant-defendant and affirmed the judgment & decree dated 22.11.2005 passed by learned Additional Civil Judge (Junior Division) First Class No. 1, Bhilwara in Civil Original Case No. 427/1992 whereby the trial court decreed the suit of the respondents-plaintiffs. The brief facts of the case are that the respondent-plaintiff Smt. Shanta Devi filed a suit for eviction against the appellant and respondent-Tek Chand before the court of Civil Judge, Bhilwara, which was later on transferred to the court of Additional Civil Judge (Junior Division) First Class No. 1, Bhilwara. It was averred in the suit that three shops, details whereof were mentioned in para 1 of the plaint are situated at Bhopalganj, Bhilwara in Rajiv Gandhi Market. The shops were given on rent to Tek Chand at a sum of Rs. 201/- per month w.e.f. 1.9.1979. It was claimed that the tenant defaulted in making payment and therefore, a decree of eviction be passed. Other grounds including that of non-user, personal & bonafide necessity etc. were also taken. It was also claimed in the suit that the tenant has rented out the middle shop to the present appellant-Raj Kumar without any authority and has created sub-tenancy.

The respondent-defendant No. 1 filed written statement denying the plaint averments. The appellant-defendant No. 2 also contested the suit and filed separate written statement, wherein it was stated that he is not sub-tenant of defendant No. 1- Tek Chand nor the shop in which he is doing his business belongs to Smt. Shanta Devi. It was also averred by the appellant-defendant that he is carrying his business in the shop in question since 1977 onwards, initially along with his grandfather and thereafter, on his own and further that the shop belongs to him.

During the pendency of the suit, an application under Order 22 Rule 10 read with Order 1 Rule 10 CPC came to be filed on behalf of Om Prakash on 14.7.2000, in which, he claimed that the entire suit property is purchased by him vide registered sale-deed dated 29.4.2000 and therefore, he be transposed as plaintiff. The learned trial court while accepting the application vide order dated 16.9.2001 transposed Om Prakash as plaintiff No. 2.

On the basis of the pleadings of the parties, the learned trial court framed eight issues including relief and recorded the evidence of both the parties. The plaintiff examined P.W.1 Bal Kishan, PW-2 Bhanwar Lal and PW-3 Om Prakash and in rebuttal, the defendants examined D.W.1 Raj Kumar, DW-2 Kanhaiya Lal and DW-3 Rameshwar Lal.

After hearing the arguments of the parties, the learned trial court decreed the suit of the respondents-plaintiffs vide the impugned judgment & decree dated 22.11.2005. Being aggrieved by the same, the appellant-defendant preferred an appeal before the learned lower appellate court. The said appeal has been dismissed vide the impugned judgment & decree dated 5.7.2007.

Hence, being aggrieved by the impugned judgments and decrees passed by the courts below, the appellant-defendant has preferred this civil second appeal.

The learned counsel for the appellant-defendant contended that the judgment and decree passed by both the courts below are against the law and also against the facts available on record, hence liable to be quashed and set aside.

The learned counsel for the appellant-defendant further contended that learned trial court as well as the first appellate court erred in deciding issue No. 7 against the appellant inasmuch as it is admitted fact that the present appellant is in possession of the suit property since long time, that too, in the knowledge of the respondent-landlord and he is in adverse possession of the suit property. Therefore the finding of the learned trial court as well as the first appellate court on issue no.7 is perverse, illegal and against the material available on record.

The learned counsel for the appellant further contended that Shanta Devi herself has not been examined and his Power of Attorney Holder, PW-1 Bal Kishan Baheti in his cross-examination admitted that he does not know the fact whether Raj Kumar is in possession of the suit property since 1979 as an owner? PW-2 Bhanwar Lal Nuwal has also stated in his cross-examination in the same way. Therefore, the fact of sub-tenancy are not within the specific knowledge of PW-1 Bal Kishan, PW-2 Bhanwar Lal and PW-3 Om Prakash. In the absence of specific knowledge of sub-tenancy, the learned trial court as well as the first appellate court decreed the suit on the ground of subletting, which is also against the material available on record.

The learned counsel for the appellant further contended that DW-1 Raj Kumar, DW-2 Kanhaiya Lal, DW-3 Rameshwar Lal specifically stated in their evidence that earlier DW-2 Kanhaiya Lal used to sit with his father in the suit property and later on, DW-1 Raj Kumar also used to sit with his grand-father in the suit property and therefore, adverse possession on the suit property is well proved and nothing has come in the cross-examination of all the three witnesses produced by the appellant-defendant Raj Kumar.

The learned counsel for the appellant strongly contended that this decree has been obtained by fraud and collusion of defendant- Tek Chand and plaintiff-landlord Shanta Devi because Tek Chand did not appear in the evidence.

The learned counsel for the appellant-defendant has proposed the following substantial questions of law in the memo of appeal :-

(i) Whether the Courts below have misread and misinterpreted the document, Ex.3 and wrongly held that the plaintiff and appellant were having landlord-tenant relationships?

(ii) Whether both the courts below have erred in law in considering that the appellant is bound by the admission of Tek Chand particularly when the appellant has specifically pleaded a case of adverse possession?

(iii) Whether the courts below have committed material irregularity in passing and affirming a decree based on deceitful tactics by two parties?

(iv) Whether the learned Trial court erred in law in not deciding issue no.7 in its correct perspective and whether the findings on issue No. 7 are not based on correct interpretation of the evidence leading to passing of the impugned judgment and decree?

(v) Whether the Courts below have committed serious illegality in misreading the evidence adduced on behalf of appellant and have further erred in law in misreading evidence of DW-1?

(vi) Whether judgment and decree as passed by the learned trial court is liable to be set-aside on the ground of non-application of mind by the learned trial court?

(vii) Whether the judgment and decree passed by the Learned Trial Court and affirmed by the Learned Appellate Court suffers from serious illegality on the ground of misreading and misinterpreting the evidence of the plaintiff?

Per contra, the learned counsel for the respondents vehemently defended the judgments of the learned trial court as well as of first appellate court. The learned counsel for the respondents contended that issue No. 7 is not regarding the adverse possession. Issue No. 7 framed by the learned trial court is as under:-

From a perusal of the aforesaid issue, it is clear that issue No. 7 is regarding the fact whether the suit property vest to Raj Kumar as an owner?

I have considered the rival contentions raised by both the parties and also perused the judgments passed by the learned trial court as well as of the first appellate court and the statements of the witnesses produced by both the parties.

So far as the contention that decree has been obtained by fraud and collusion is concerned, from the pleadings of the parties and evidence, it cannot be said that the decree has been obtained by collusion because Tek Chand specifically denied the averments of the plaint and further deposited the rent provisionally determined by the learned trial court from time to time and also the counsel for the respondent-Tek Chand cross-examined the witnesses at length. The conduct of the respondent- Tek Chand cannot be said to be of such a nature, which shows that there was collusion between Shanta Devi, Om Prakash and Tek Chand.

So far as the ownership is concerned, Shanta Devi sold the suit property to Om Prakash. She after purchasing the suit property from Municipal Council, Bhilwara had constructed the building. It is admitted fact that out of the three shops, two shops have been vacated by Tek Chand and possession has been handed over to Om Prakash and the suit property, which is in between the other two shops, is in possession of the present appellant and the roof of all the three shops is in possession of Om Prakash. That goes to show that all the three shops were rented to Tek Chand by Shanta Devi and subsequently, Tek Chand came into possession of the suit property. In the absence of any documents or title, it cannot be said that the property in question vests in Tek Chand. Therefore, the arguments advanced by counsel for the appellant regarding the ownership of the property does not carry any force.

Now, turning to the point of the question of adverse possession, from the evidence of the appellant as well as DW-2 Kanhaiya Lal and DW-2 Rameshwar Lal, it cannot be said that Raj Kumar has got the adverse possession over the suit property. The respondent-landlord proved the execution of rent-note Exhibit-3, which bears the signatures of Tek Chand and in rent-note, three shops have been mentioned to be rented to Tek Chand. The document Exhibit-3 was executed on 1st April, 1979. The execution of Exhibit-3 itself shows that all the three shops were given on rent to the respondent-Tek Chand and the evidence of DW-1 Raj Kumar, DW-2 Kanhaiya Lal, DW-3 Rameshwar Lal does not inspire any faith in view of the execution of document Exhibit-3 by Tek Chand. During the course of arguments, the learned Counsel for the appellant drew my attention to the fact that the document Exhibit-3 does not bear the name of tenant. But at the bottom of the rent-note, there are signatures of Tek Chand at two places. Thus, the execution of rent-note is proved beyond doubt.

The learned trial court as well the first appellate court considered the documentary as well as oral evidence at length produced by both the parties and after due consideration of evidence, decreed the suit in favour of the respondent-Om Prakash and I see no reason to have a different view from the trial court as well as from the first appellate court. The findings recorded by learned trial court as well the first appellate court cannot be said to be perverse, illegal or against the material available on record. On the contrary, the findings of learned trial court as well first appellate court is based on sound reasonings and the same are given after appreciating the evidence produced by both the parties. No substantial question of law as proposed by the learned counsel for the appellant is involved in this appeal.

In view of the aforesaid, I find no illegality, infirmity or irregularity in the findings arrived at by the learned trial court as affirmed by the learned first appellate court. Both the courts below have given concurrent finding of fact. The impugned judgments passed by the courts below do not call for any interference at the second appellate stage.

Consequently, this civil second appeal being bereft of any merit is dismissed at admission stage. No order as to costs.

At this stage, the learned counsel for the appellant contended that appellant is carrying on his business in the suit premises, therefore, sufficient time may be granted to vacate the suit premises. The learned counsel for the respondent-landlord submitted that there is an order of status quo against the eviction by this Court since 2007, and thus, the appellant has already availed the sufficient time. Therefore, he may not be granted further time to vacate the suit premises. Looking to the entire facts and circumstances of the case and also the fact that appellant is carrying on business since long time, one year time is granted to the appellant to vacate the suit premises from today. The appellant shall file an undertaking before the trial court within two months from today that he will vacate the suit premises within a period of one year from today. Failing to submit undertaking, the respondents-plaintiffs shall be free to get it vacated through execution proceedings.