Patna High Court
Case Details
Patna High Court SA No.637 of 2011 (8) dt.23-07-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.637 of 2011 ====================================================== Most. Girija Devi & Ors .... .... Appellant/s Raghunath Pd. Versus .... .... Respondent/s ====================================================== With Second Appeal No.638 of 2011 ====================================================== Most. Girija Devi & Ors .... .... Appellant/s Raghunath Pd. Versus .... .... Respondent/s ====================================================== Appearance : (In SA No.637 of 2011) For the Appellant/s : Mr. Jitendra Kishore Verma For the Respondent/s : Mr. (In SA No.638 of 2011) For the Appellant/s : Mr. Jitendra Kishore Verma For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 8 23-07-2013 Both the Second Appeals are heard together under Order XLI Rule 11 C.P.C. Second Appeal No.638 of 2011 is barred by law of limitation according to the stamp report. Therefore, an application under Section 5 of the Limitation Act has been filed by the appellant praying for condoning the delay of
Legal Reasoning
about 5 days. According to the learned counsel for the appellants, there is no delay in filing the Second Appeal but the stamp reporter has not counted the period which was taken in supplying Patna High Court SA No.637 of 2011 (8) dt.23-07-2013 2 the certified copy of the decree under appeal. However, since the Second Appeal has been listed under the heading for hearing under Order XLI Rule 11 C.P.C. and I have already heard on merit, this I.A. is allowed and in view of the explanation submitted by the appellant, the delay if any, is condoned. Heard the learned counsel, Mr. J. K. Verma appearing on behalf of the appellants under Order XLI Rule 11 C.P.C. in both the Second Appeals. Both the Second Appeals have been filed against the common judgment and decree dated 29.08.2011 passed by the learned Additional District Judge III, Patna City in Title Appeal No.65 of 1994 and Title Appeal No.66 of 1994 whereby the Lower Appellate Court dismissed the appeal and thereby confirmed the judgment and decree dated 31.03.1994 passed by the learned Munsif, Patna City in Title Eviction Suit No.3 of 1988 and Title Eviction Suit No.77 of 1984. It appears that the plaintiff-respondent filed Title Eviction Suit No.77 of 1984 for eviction of the tenant-defendant- appellant on the ground of personal necessity only. Subsequently, Title Eviction Suit No.3 of 1988 was filed by the plaintiff- respondent for the eviction of the defendant on the ground of default. Both the title suits were tried together and by the common Patna High Court SA No.637 of 2011 (8) dt.23-07-2013 3 judgment, the trial court decreed the plaintiff’s suit on both accounts. The defendant-appellant filed two title appeals being Title Appeal No.65 of 1994 and Title Appeal No.66 of 1994. Both the title appeals were heard analogously and by the common judgment and decree, both the title appeals have been dismissed. Against the common judgment, the defendant has filed two Second Appeals. Therefore, both the Second Appeals are heard together under Order XLI Rule 11 C.P.C. The plaintiff claimed the relief for eviction alleging that the defendant is tenant on the suit premises on the monthly rent of Rs.8. The suit premise is required reasonably in good faith for the personal occupation of the plaintiff. The plaintiff has not paid the rent for last several months and there is arrear of rent amounting Rs.288. The defence of the defendant-appellant is that in fact, he was tenant in the suit premises till the year 1975. Thereafter, the suit premises fell down in the year 1975 and then the tenancy terminated. The defendant left the suit premises and subsequently, his wife Girija Devi purchased the suit property from the co-sharer of the erstwhile vendor of the plaintiff and, therefore, the defendant is residing there with his wife who after constructing a house after purchase, is residing in the same as owner thereof. After purchase by the wife of the defendant namely Girija Devi, Patna High Court SA No.637 of 2011 (8) dt.23-07-2013 4 there is no relationship of landlord and tenant between the parties. The personal necessity was also denied. The trial court on considering materials available on record recorded the finding that there is relationship of landlord and tenant between the parties. The plaintiff requires the suit premises reasonably and in good faith. The trial court also recorded the finding that the defendant failed to prove that in fact, the suit premises completely fell down in the year 1975, therefore, the tenancy was terminated. On appeal, the Appellate Court confirmed the finding of the trial court and then dismissed the appeal. The learned counsel, Mr. J.K.Verma appearing on behalf of the appellants submitted that the trial court as well as the Appellate Court have not considered the evidences produced by the defendant-appellant properly in their right perspective and recorded the finding wrongly to the effect that the defendant failed to prove that the suit premises fell down in the year 1975 and thereafter the wife of the defendant constructed the house after purchase in the year 1980 and then the appellant is residing in the suit premises with his wife. The learned counsel for the appellants further submitted that the Lower Appellate Court relied upon Exhibit 11, the certified copy of the show cause filed by the Patna High Court SA No.637 of 2011 (8) dt.23-07-2013 5 defendant in injunction matter before the High Court in Civil Revision without considering the fact that said Exhibit 11 was not confronted to the appellant while cross-examination was made by the plaintiff-respondent, therefore, according to the learned counsel for the appellants, the said Exhibit 11 is not admissible in the evidence and cannot be used against the defendant-appellant. The learned counsel in support of his contention placed in extenso the trial court judgment and the Lower Appellate Court judgment. From perusal of the judgment of both the courts below, it appears that both the courts below have considered the evidences adduced by the defendant-appellant regarding the claim of termination of tenancy in the year 1975 and construction of the house by the wife of the defendant after purchase in the year 1980 and thereafter recorded the finding disbelieving the case of the defendant-appellant. In my opinion, therefore, the submission of the learned counsel for the appellants that the Lower Court as well as the Lower Appellate Court have not considered some line or some portion of particular witness and therefore, the judgment is vitiated relates to the manner of appreciation of evidences. These evidences produced by the defendants are purely oral evidences. Both the courts below appreciated the evidences and then recorded the finding. In such view of the matter, this court being the second Patna High Court SA No.637 of 2011 (8) dt.23-07-2013 6 appellate court, cannot reappreciate the evidences and dictate the courts below that the evidences should be discussed in this manner and also cannot substitute the finding of fact. So far Exhibit 11 is concerned, it may be mentioned here that it is the show cause filed by the defendant in the Civil Revision application before the High Court. Further, it is not the only evidence on which the finding has been recorded. Therefore, even if Exhibit 11 is excluded then also it cannot be said that on the basis of the evidences produced by the defendants, the Lower Appellate Court as well as the trial court could not have recorded the finding that the defendant failed to prove his case regarding termination of the tenancy. It may be mentioned here that the relationship of landlord and tenant between the plaintiff and the original defendant is admitted by original defendant. Therefore, according to the courts below, the onus was on the defendant to prove the fact that the tenancy terminated in the year 1975. It is settled principles of law that the finding on the question of relationship of landlord and tenant is a pure question of fact. Likewise, the finding regarding personal necessity and the default is also pure finding of fact. In the present case, the only defence of the defendant is that the wife has purchased the property. For this, it will not be out of place to mention here that Patna High Court SA No.637 of 2011 (8) dt.23-07-2013 7 the wife has already filed Title Suit No.66 of 1994 for declaration of her title on the basis of purchase made by her. It is settled principles of law that the question of title cannot be gone into in the eviction suit as has been held by the Hon’ble Supreme Court in the case of Rajendra Tiwary v. Basudeo Prasad and Another, AIR 2002 Supreme Court 136. So far relationship of landlord and tenant is concerned, as has been held that the courts below have recorded the finding that the defendant failed to prove his case of termination. In such view of the matter, in this case, the default is admitted and since the defendant has failed to prove termination of tenancy, he cannot be allowed to challenge the title of the plaintiff. The finding of personal necessity is also a finding of fact. Therefore, none of the questions raised by the learned counsel for the appellants is substantial question of law involved for decision in this Second Appeal and thus, in my opinion, no substantial question of law is involved. Accordingly, both these Second Appeals are dismissed at the admission stage itself. Saurabh/- (Mungeshwar Sahoo, J)