Yamin @ Meenu vs Om Prakash and Another

Sanjay Misra, J.—Heard Sri Anil Sharma, learned Counsel for the Defendant-Appellant and Sri M.K. Gupta, learned Counsel who has put in appearance on behalf of the Plaintiff-Respondent. 2.This is a second appeal u/s 100 of the CPC against the judgment and decree dated 10.11.2010 passed in Civil Appeal No. 82 of 2010 by Additional District Court, court No. 5, Bijnor whereby Defendant''s appeal has been dismissed and the judgment and decree of the trial court dated 25.08.2010 in Original Suit No. 187 of 1995 Om Prakash v. Mohd. Yasin and Anr. has been confirmed.

Learned Counsel for the Defendant-Appellant has submitted that the suit itself was not maintainable in the civil court since the Defendant was a tenant in the premises in question. He further states that the Plaintiff was not the owner or landlord of the property and hence he could not institute such a suit for injunction and possession. The further submission is that the courts below have committed an illegality in ignoring the judgment passed by this Court in Second Appeal No. 3153 of 1984 decided on 26.05.2010 since the property in that proceedings and the property in the present proceedings are the same. Learned Counsel for the Defendant-Appellant has referred to the judgment of the trial court and submits that the issues framed were as to whether the Plaintiff is the owner of the property in question and the Defendant No. 2 is the tenant thereof? The second issue framed was whether the civil court had jurisdiction to decide the suit?

Sri Anil Sharma has referred to the finding recorded on the aforesaid issues and states that in view of the averments made in the written statement and the oral statement given by the Defendant his case was clear that he is the tenant of the premises in question and the Plaintiff is not the landlord. He refers to the judgment in Second Appeal No. 3153 of 1984 for the said purpose and according to him the Defendant-Appellant was the tenant of the mother of the Plaintiff namely Brahmawati and, therefore, the courts have committed an error in disbelieving such plea taken by the Defendant and holding to the contrary that he is not tenant of the premises in question. Sri Sharma has further pointed out to the decision on issue No. 1 and states that the Plaintiff was never owner or landlord of the premises in question and finding to the contrary is illegal and without any evidence.

Having considered the submissions of learned Counsel for the parties and perused the record, the answer to issue No. 1 given by the trial court is that the Plaintiff-Respondent is owner of the shop in question and the Defendant-Appellant is a trespasser therein. The plea of tenancy raised by the Defendant was found not proved by the trial court. On the second issue the Defendant-Appellant has been held to be a trespasser of the premises in question, therefore, the suit for injunction and possession was found to be maintainable.

At the first appellate stage the first appellate court has framed the questions which required to be answered by the first appellate court. It framed the questions as to whether the Defendant-Appellant is a tenant of the shop in question, whether he is trespasser and in possession and whether he is liable to pay Rs. 500/-per month as damages and compensation for unauthorized use and occupation of the premises in question. The first appellate court has considered points No. 1 and 2 together and has confirmed the finding recorded by the trial court to the effect that the Defendant is not a tenant of the premises in question and that he is a trespasser and is in unauthorized possession. On this the submission of learned Counsel for the Defendant-Appellant is that the first appellate court did not frame any question to be determined regarding ownership of the property in question.

From a perusal of the judgment of the first appellate court it will be seen that the first appellate court has considered the pleadings of the parties and the evidence and has come to a conclusion that the Defendant-Appellant could not prove that he was a tenant of the shop in question. His possession was held to be unauthorized. Insofar as the aforementioned two issues are concerned, the finding of both the courts below are concurrent and based on evidence. In a second appeal u/s 100 of the CPC this Court cannot interfere in the concurrent findings by re-appreciating the evidence and substituting its own view in place of the view taken by the court below. It is settled law that unless concurrent findings are absolutely perverse and are not based on any evidence at all that any interference can be made by the second appellate court. Such is not the circumstance in the present case inasmuch as both the courts below on the aforesaid two issues have recorded the findings on the basis of evidence which now cannot be re-appreciated in a second appeal. Consequently the decree of injunction and possession granted by the courts below on the basis of the aforesaid concurrent findings of fact cannot be found to be illegal in any manner whatsoever.

Insofar as the submission of learned Counsel for the Defendant-Appellant that the first appellate court has not recorded any finding on the ownership of the Plaintiff is concerned, the trial court has clearly found that the Plaintiff and his brothers were owners of the premises in question and it is informed that his two other brothers have already sold off their share of the property in question. Even in Second Appeal No. 3153 of 1984 decided on 26.05.2010 it was held that there has been no partition in the family. Therefore even a co-owner of a property can bring a suit against a trespasser. The claim of the Defendant that he is a tenant of Smt. Brahmawati who was mother of the Plaintiff cannot be of any help to them since even that plea has not been proved by leading any cogent evidence whatsoever.

The findings of fact are based on evidence and since the same have been affirmed by the first appellate court there is no reason for this Court in a second appeal to consider re-opening the evidence of such finding recorded by the courts below. Moreover there is total lack of evidence to the contrary.

The second appeal does not involve any substantial question of law in view of the fact that substantial questions of law as framed by the Defendant-Appellant in the memo of appeal are answered on the findings of fact recorded by the courts below.

The second appeal is accordingly dismissed. No order is passed as to costs.