Rajendra Kumar Verma vs Triyugi Narain Verma

Poonam Srivastav, J.—Heard learned Counsel for the appellant and the counsel for the caveator/respondent.

This is defendant''s second appeal arising out of the judgment and decree dated 9.4.2008, passed by the Additional District Judge, Court No. 2, Kanpur Nagar, in Civil Appeal No. 31 of 2007 confirming the judgment and decree dated 20.3.2007, passed by the Civil Judge (Junior Division) Kanpur Nagar, in Original Suit No. 274 of 2002, Triyugi Narain v. Rajendra Kumar Verma.

The plaintiff/respondent instituted a suit against the appellant/defendant for his eviction on the ground that the appellant was in possession of the disputed premises on the basis of a licence. The licence was revoked by means of notice, therefore, he is not entitled to continue in possession. Specific case of the plaintiff was that the house in question being house No. 104A/248C, Rambagh, Kanpur Nagar, belongs to the plaintiff. Since he was posted outside Kanpur, the defendant/appellant was his relative and he had no place at Kanpur, therefore, he was allowed to occupy the back portion of the house with an understanding that he will vacate the premises as and when required by the plaintiff/respondent and an agreement note was written on 24.2.1989. After the plaintiff/respondent retired from his Railway service, he requested the defendant to vacate the premises, which he flatly refused to do so. A registered notice dated 7.12.2001 was served on the defendant revoking his licence. The defendant contested the suit on the ground that he is not a licensee but a tenant and his father was the previous tenant and after his death, the appellant continues in the capacity of a tenant. The agreement relied upon by the plaintiff and brought on record as paper No. 29-Ga, was an unregistered document and carbon copy. Oral as well as documentary evidence was adduced by both the parties. The trial court decreed the suit, which was challenged in regular civil appeal and the same has also been dismissed.

Learned Counsel for the appellant has framed six substantial questions of law but he has laid emphasis on substantial question of law Nos. 1, 2, 5, 6, which are quoted hereinbelow:

Whether, the courts below have succeeded in determining the nature of relationship between the plaintiff and defendant as of licensor and licensee, without appreciating the point of "Exclusive possession" of the appellant in the suit premises?

Whether, the courts below have committed a grave error of reasoning in placing reliance over the document recorded as 29-Ga to be a licence agreement?

Whether, the courts below has unjustly hold the rent receipts as the only conclusive proof of tenancy?

Whether, the courts below while deciding issue No. 5 on jurisdiction to the Court, have committed an error while not recording any finding to the same.

Findings recorded by the courts below are that the entire premises is an ancestral house, which was divided into four parts amongst the four brothers and given different number as A, B and C. The defendant relied upon the death certificate of his father Puttu Lal Verma where House No. 104A/248C, Rambagh, Kanpur Nagar, was mentioned. Besides, certain other letters alleged to have been received at the aforesaid address and also that no receipt was ever given by the plaintiff/respondent w.e.f the year 1989. He started depositing the rent u/s 30(1) of U.P. Act No. 13 of 1972.

The trial court framed six issues. Issue No. 1 is whether the defendant was licensee or not? Issue No. 2 is whether the said licence was revoked? Issue No. 3 is whether the defendant is a tenant of the plaintiff. Issue Nos. 1, 2, 3 and 4 were decided by the trial court simultaneously. Both the Courts have recorded a conclusive finding that the appellant was in occupation as licensee and once licence was revoked, there was no right of the defendant to continue in occupation.

Learned Counsel for the appellant has placed reliance on a decision of the Apex Court; C.M. Beena and Anr. v. P.N. Ramachandra Rao 2004 (3) AWC 2226 (SC), wherein the question involved was determination of the nature of occupation whether it was lease or licence. The Apex Court held that a contractual licence is not more than a permission on the occupier to do some act on the owner''s land, which would otherwise constitute a trespass. If exclusive possession is not conferred by an agreement, it is always a licence.

In the instant case, the plaintiffs plaint rests on the specific assertion that he had given permission to the defendant to occupy the premises only till he requires the house in question for his own use and also since he was not living at Kanpur. It was the defendant, who set up the case that he was in occupation in the capacity of the tenant and, therefore, it was bounden duty of the defendant to substantiate his pleadings by means of cogent evidence such as allotment order, entries in the municipal record, rent receipts etc. Merely certain letters on the address as well as death certificate, and school leaving certificate where address mentioned is that of the disputed house, will not suffice to come to a conclusion that he was a valid tenant. It is a concurrent findings of fact.

Another decision cited by the counsel for the appellant is on the argument that what will constitute a substantial question of law and need for drawing distinction with some question of law or substantial question of fact is in the case of Hero Vinoth (minor) Vs. Seshammal, The submission is that if a question of fact has not been taken into consideration by the courts below and it is a question having material bearing on the decision of the case, then this Court should interfere in exercise of Jurisdiction u/s 100, C.P.C. and will be covered within the four corners of substantial question of law.

Learned Counsel for the appellant has argued that the Courts have no Jurisdiction to hear the case for eviction as the plaintiff was liable to institute eviction case under the Act No. 13 of 1972 especially rent was being deposited u/s 30 of the said Act.

I am not in agreement with the argument advanced on behalf of the appellant on the question of Jurisdiction for the reason that the courts below have categorically recorded findings that the relationship between the plaintiff and defendant was not one of the landlord and tenant and there was nothing on record in support of the pleading to substantiate the relationship of the landlord and tenant. The amount deposited u/s 30(1) of U.P. Act No. 13 of 1972 was subsequent to the receipt of notice terminating the licence and, therefore, it is of no consequence. Assuming that the document 29-Ga relied upon by the plaintiff is also ignored even then it was burden of the defendant, who had set up the case that he was In occupation in the capacity of a tenant to establish his case. He has not been able to substantiate his defence and claim of tenancy rights. The courts below have clearly stated and come to a conclusion after consideration of evidence that there is no relationship of landlord and tenant and it was only a permission granted by the plaintiff, which was revoked subsequently by means of the written notice and, therefore, suit was very well maintainable. The appellant, after refusing to vacate the house in question on receipt of notice was nothing but a trespasser or unauthorized occupant and after the suit was decreed, the appellant''s submission that he has wrongly been evicted is also without any substance. The substantial question of law raised in the Instant second appeal does not merit any consideration.

Submission is that findings of the courts below has resulted in material injustice and the documents such as death certificate, letters received at the said address and school leaving certificate etc. are not sufficient and conclusive proof about the relationship of landlord and tenant. The appeal is devoid of any substantial question of law. It does not call for any interference in exercise of Jurisdiction u/s 100, C.P.C. The ruling placed and relied upon by the counsel for the appellant; viz Hero Vinoth (supra) is of no help to the appellant. I am of the considered view that the two Judgments do not suffer from any error of law or substantial error of law.

The Apex Court depreciated the liberal construction and generous application of provisions of Section 100, C.P.C. Hon''ble Supreme Court was of the view that only because there is another view possible on appreciation of evidence that cannot be sufficient for interference u/s 100, C.P.C. For ready reference, extract of paragraph No. 7 of the case of Veerayee Ammal Vs. Seeni Ammal, is quoted below ;

...We have noticed with distress that despite amendment, the provisions of Section 100 of the Code have been liberally construed and generously applied by some Judges of the High Courts with the result that objective intended to be achieved by the amendment of Section 100 appears to have been frustrated. Even before the amendment of Section 100 of the Code, the concurrent finding of facts could not be disturbed in the second appeal. This Court in Paras Nath Thakur v. Mohani Dasi AIR 1205 3, held:

It is well-settled by a long series of decisions of the Judicial Committee of the Privy Council and of this Court, that a High Court, on second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the Courts of fact may be. It is not necessary to cite those decisions. Indeed, the learned Counsel for the plaintiff-respondents did not and could not contend that the High Court was competent to go behind the findings of fact concurrently recorded by the two Courts of fact.

Similar view has been expressed in a number of other decisions by the Apex Court in the cases of Thiagarajan and Others Vs. Sri Venugopalaswamy B. Koil and Others, Rajeshwari Vs. Puran Indoria, Gurdev Kaur and Ors. v. Kaki and Ors. 2006 ACJ 1481 (SC) : 2006 (3) AWC 2373 and Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others,

The Apex Court in the recent case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., ruled that a point of law which admits of no two opinions may be proposition of law but cannot be a substantial question of law. To be ''substantial'' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. It will, therefore, depend on the facts and circumstances of the each case whether a question of law is substantial one and involved in the case or not? The same view has been expressed by the Apex Court in the case of Govindaraju Vs. Mariamman,

The judgments under challenge cannot be interfered in this appeal in exercise of jurisdiction u/s 100, C.P.C. The two judgments do not suffer from any error and no substantial question of law arises. The instant second appeal lacks merit and is, accordingly, dismissed. Costs on parties.