Patna High Court
Case Details
Patna High Court SA No.386 of 2010 (14) dt.12-09-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.386 of 2010 ====================================================== Kaushal Singh .... .... Appellant/s Rajendra Prasad & Ors. Versus .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Ravi Bhushan Singh For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 14 12-09-2013 (1) Heard the learned counsel, Mr. Nawal Kishore Singh appearing on behalf of the appellant and the learned
Legal Reasoning
530, the Hon’ble Supreme Court has held that it is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the Patna High Court SA No.386 of 2010 (14) dt.12-09-2013 6 finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent.” It appears that in that case also, the Lower Appellate Court had recorded the finding about existence of relationship of landlord and tenant between the parties. (13) Recently, the Hon’ble Supreme Court in the case of Vishwanath Agrawal vs. Sarla Vishwanath Agrawal, (2012) 7 Supreme Court Cases 288 at paragraph 37 has held that the findings of fact cannot be interfered with in second appellate jurisdiction unless it is shown that the findings are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. Merely because another view is possible on the basis of the same evidence, the High Court would not be entitled to exercise the jurisdiction under section 100 of the Code of Civil Procedure. (14) In view of the above settled principles of law, the point raised by the learned counsel for the appellant is not at all a substantial question of law involved in this Second Appeal for decision. The controversies between the parties have already been resolved by concurrent findings of fact of both the courts below. I, therefore, find that no substantial question of law is Patna High Court SA No.386 of 2010 (14) dt.12-09-2013 7 involved in this Second Appeal and accordingly, this Second Appeal is dismissed at the admission stage itself. Saurabh/- (Mungeshwar Sahoo, J)
Arguments
counsel, Mr. V.R.P.Singh appearing on behalf of the respondents under Order XLI Rule 11 C.P.C. (2) The defendant-appellant-appellant has filed this Second Appeal against the judgment and decree dated 30.03.2010 passed by the learned Additional District Judge, F.T.C. II, Jamui in Title Eviction Appeal No.2 of 2006 whereby the learned Lower Appellate Court dismissed the appeal and confirmed the judgment and decree of the trial court dated 13.01.2006 passed by the learned Additional Munsif III, Jamui in Title Eviction Suit No.1 of 1997. (3) The plaintiffs filed the aforesaid suit for eviction of the defendant-appellant on the ground of default and personal Patna High Court SA No.386 of 2010 (14) dt.12-09-2013 2 necessity. According to the plaintiffs, the owner of the property, Sakuntala Devi and her son, Pramod Kumar sold a portion of the land by registered sale deed dated 14.02.1978 for Rs.25,000. On January, 1995, the defendant took the suit premise on rent for Rs.300 per month and opened a medicine shop. He only paid rent for first month. He had deposited advance of Rs.300 i.e. rent of one month also. Thereafter, he did not pay the rent, therefore, he is a defaulter. The son of the plaintiff is unemployed, therefore, the plaintiff also requires the suit premises for personal occupation. (4) The defendant appeared and filed a contesting written statement alleging that in fact, Sakuntala Devi had mortgaged the suit premises to the father of the defendant through a registered mortgage deed dated 09.08.1963 for a period of 3 years and delivered possession of the suit property where the defendant has opened a medicine shop. The said mortgage was never redeemed, therefore, the defendant is residing there as owner. (5) The trial court on consideration of the evidences and materials available on record recorded categorical finding that there is relationship of landlord and tenant between the parties and the defendant is a defaulter. The trial court also recorded the Patna High Court SA No.386 of 2010 (14) dt.12-09-2013 3 finding that the plaintiff requires the suit premises for personal occupation. Accordingly, decreed the plaintiff’s suit. (6) The defendant thereafter filed title appeal before the Lower Appellate Court. The Lower Appellate Court confirmed the finding of the trial court and dismissed the title appeal. (7) The learned counsel, Mr. Nawal Kishore Singh appearing on behalf of the appellant submitted that the effect of the registered mortgage deed dated 09.08.1963 has not been correctly appreciated by both the courts below. According to the learned counsel, the mortgage was for 3 years and thereafter no redemption suit was filed either by the vendor of the plaintiff or after purchase by the plaintiff and, therefore, the redemption suit is now barred. In such circumstances, the plaintiff has filed the eviction suit with a view to get the defendant evicted from the suit premises. Therefore, this eviction suit is in the garb of declaration of title. The learned counsel submitted that the mortgage deed has been marked Exhibit B wherein it has been recited that the suit property is a shop premises. On these grounds, the learned counsel submitted that the judgments of both the courts below are vitiated. (8) On the other hand, the learned counsel, Mr. Patna High Court SA No.386 of 2010 (14) dt.12-09-2013 4 V.R.P.Singh appearing on behalf of the respondents submitted that both the courts below have concurrently found that there is relationship of landlord and tenant between the parties. In such circumstances, the title of the parties cannot be decided in the present suit. (9) From perusal of the judgment of both the courts below, it appears that the defence of the defendant has been considered by both the courts below and thereafter both the courts below have also considered the oral evidences produced by the parties and thereafter recorded the finding that there is relationship of landlord and tenant between the parties and that the defendant is a defaulter. Both the courts below also recorded that the plaintiff requires the suit premises reasonably and in good faith for personal occupation. (10) In the case of Rajendra Tiwary v. Basudeo Prasad and Another, AIR 2002 Supreme Court 136, the Hon’ble Supreme Court has held that the scope of the enquiry before the Courts under the Bihar Building(Lease, Rent & Eviction) Control Act is limited to the question as to whether the grounds for eviction of the defendant have been made out under the Act and whether there is relationship of landlord and tenant between the parties or not. The question of title of the parties to Patna High Court SA No.386 of 2010 (14) dt.12-09-2013 5 the suit premises is not relevant having regard to the width of the definition of the terms "landlord" and "tenant". The question raised by the learned counsel in the present case relates to the question of title. Admittedly, the defendant-appellant has never filed any foreclosure suit. Therefore, whether the mortgage was redeemed or has not been redeemed or that for not redeeming the mortgage within the limitation period, the title has been acquired by the defendant is a foreign question i.e. outside the competence of the court for deciding the dispute between the parties according to Bihar Building(Lease, Rent & Eviction) Control Act. (11) In the present case, as stated above, both the courts below concurrently found the relationship of landlord and tenant, default and personal necessity. All these findings are findings of fact. (12) In the case of Gurvachan Kaur and others vs. Salikram(Dead) through LRs., (2010) 15 Supreme Court Cases