Dismissed

Pratap Singh (Dead) v. Bhagwan Das Modi

Chhattisgarh HC1 Dec 2020SA/430/2019

Case brief

AI extract

What is this about?

This common order dismisses two second appeals against judgments decreeing ejectment under the Rent Act. The High Court held that concurrent findings of fact regarding sub-tenancy were supported by documentary evidence and admissions, constituting no question of law.

What did the court decide?

Both appeals were dismissed in limine as no substantial question of law arose for consideration.

Pratap Singh (Dead) Vs Bhagwan Das Modi — Property and Title | Chhattisgarh HC (2020)

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Second Appeal No. 421 of 2019

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Appellants/defendants	1.	Pratap Singh (dead) through Legal Representatives :
	1A	Smt. Laxmin Bai Wd/o Pratap Singh (dead) through legal representatives :
	1B	Lokpal Thakur, aged about 45 years, s/o Pratap Singh
	1C	Satyanedra Thakur, aged about 39 years, S/o Pratap Singh,
	1D	Khagendra Thakur, aged about 35 years, S/o Pratap Singh
	1E	Yogendra Thakur, aged about 30 years, S/o Pratap Singh All Residents of Purani Basti, Korba (C.G).
	2	Ram Kumar Singh (dead) through Legal Representatives :
	2A	Smt. Usha Singh, Wd/o Late Shree Ram Kumar Singh, aged about 66 years
	2B	Tejbahadur Singh, s/o Late Shree Ram Kumar Singh, aged about 46 years,
	2C	Kartikeshwar Singh, s/o late Shree Ram Kumar Singh, aged about 44 years
	2D	Khageshwar Singh, S/o late Shree Ram Kumar Singh, aged about 40 years All residents of Purani Basti, Korba, Distt. Korba Chhattisgarh
		Versus
Respondent/Plaintiff		Bhagwan Das Modi, aged about 62 years, son of Dwarika Das Modi, R/o Main Road Korba (Chhattisgarh)

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For the Appellants	: Mr. Ashok Swarnkar, Advocate
For the Respondent	: Mr. Shobhit Koshta, Advocate General
For the Intervener	: Mr. Rajeev Shrivastava with Mr. Malay Shrivastava, Advocate

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Second Appeal No. 430 of 2019

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Appellants/defendants	1.	Pratap Singh (dead) through Legal Representatives :
	1A	Smt. Laxmin Bai, Wd/o Pratap Singh (dead)
	1B	Lokpal Thakur, aged about 45 years, s/o Pratap Singh
	1C	Satyanedra Thakur, aged about 39 years, S/o Pratap Singh,
	1D	Khagendra Thakur, aged about 35 years, S/o Pratap Singh
	1E	Yogendra Thakur, aged about 30 years, S/o Pratap Singh All Residents of Purani Basti, Korba (C.G).
	2	Ram Kumar Singh (dead) through Legal Representatives
	2A	Smt. Usha Singh, Wd/o Late Shree Ram Kumar Singh, aged about 66 years
	2B	Tejbahadur Singh, s/o Late Shree Ram Kumar Singh, aged about 46 years,
	2C	Kartikeshwar Singh, s/o late Shree Ram Kumar Singh, aged about 44 years
	2D	Khageshwar Singh, S/o late Shree Ram Kumar Singh, aged about 40 years
		All residents of Purani Basti, Korba, Distt. Korba Chhattisgarh
		Versus

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Respondent/Plaintiff	Bhagwan Das Modi, aged about 62 years, son
	of Dwarika Das Modi, R/o Main Road Korba
	(Chhattisgarh)

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For the Appellants	: Mr. Ashok Swarnkar, Advocate
For the Respondent	: Mr. Shobhit Koshta, Advocate General
For the Intervener	: Mr. Rajeev Shrivastava with Mr. Malay Shrivastava, Advocate

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Hon'ble Shri Justice Goutam Bhaduri

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Judgment/Order on Board

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01-12-2020

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Since the facts of the case are same as same set of evidence is relied on and further the and questions of law raised in both the appeals are similar, they are decided by this common order.

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Two civil suits bearing No. 40-A/1997 & 41-A/1997 were filed wherein the common evidence was adduced and were decided together by judgment and decree dated 14.05.2018. Subsequently the appellate court too, affirming the order passed by the trial Court, decided both the appeals together by common judgment & decree dated 02.05.2019. The facts involved in these appeals are that a civil suit was filed by plaintiff Bhagwan Das Modi interalia pleading that the house was given on rent in the year 1975 to appellant Pratap Singh, defendant No.1. It was contended that subsequently Pratap Singh parted with the part of the premises to Ram Kumar Singh who was defendant no.2 (since deceased). It was further stated that both the defendants Pratap Singh and Ramkumar Singh were carrying on their business separately and individually and since sub-tenancy was created, they are liable to be evicted from the suit premises. The plaint averments further alleged that the defendants have materially altered the

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structure of the premises and have encroached upon the part of the land in front of the suit premises despite the fact that the plaintiff objected to such construction. Consequently with such new additional construction, it has materially altered the nature of suit premises, therefore, he is also liable to be evicted. It is further stated that he has parted with another part of the shop with his brother-in-law in the year 1981. Consequently, he is also liable to be evicted. The plaintiff in his pleading also projected the bona-fide need for his son Ajay Modi as he did not have suitable alternative shop in the city of Korba to carry on his business. It was stated that the defendant tenant has initially used the suit premises for restaurant and meals hotel which was further parted with, consequently he is liable to be evicted.

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Defendnat no.1 Pratap Singh (since deceased) and defendant no.2 Ram Kumar Singh denied the contention. It was stated that initially the suit premises were taken on rent from the father of the plaintiff @ Rs.45-45/- per month which was subsequently increased from time to time and lastly increased upto Rs.150-150/- per month. It was further stated that when the suit premises was obtained on rent in the year 1961-1962, at that time, defendant no.2 i.e., Ram Kumar Singh was minor and from the initial date, the business of meals hotel, milk shop and pan-shop was being carried out by the defendants. It was further stated that defendant No.1 Pratap Singh was acting as Karta of joint Hindu Family and defendant no.2 is the brother and business was jointly carried out by both the brothers. Therefore, the plaintiff is liable to be non-suited. In the suit, Bishambar Prasad Modi (since deceased) was also party who is brother of plaintiff Bhagwan Das Modi. In reply, though the ejectment was supported, but the inheritance and ownership inter-alia was disputed and stated that defendant no.3 i.e., Bishambar Prasad Modi is also the joint owner of the suit premises.

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The trial Court framed as many as 9 issues. Issue no.2 is with respect to

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the fact that whether the suit premises were given on rent to Pratap Singh defendant no.1 @ Rs.150 per month in 1975. The finding was arrived that it was proved. Issue no.3 was held in favour of the plaintiff land lord to the extent that defendants have parted with the property against the terms of tenancy to defendant no.2 i.e., Ram Kumar Singh, the brother. Issue no. 4 is with respect to construction, which was held to be not proved. The issues framed and findings arrived at by the trial Court are reproduced for the sake convenience :

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5-	D;k izfroknh dzekad 01 us okn edku ds fgLls ij oknh mi fdjk;snkj j[k fy;k gS \| izekf.krA
6-	D;k izfroknh dzekad 01 us gksVy ds iz;kstu ls fy;s x;s nqdku esa iku nqdku rFkk nw/k HkaMkj dk O;olk; dj jgk gS \| izekf.kr ughaA
7-	lgk;rk ,oa O;; \|oknh dk okn Lohdkj
8-	D;k oknh ,oa izfroknh dzekad 03 ^v* ls ^Q* Lo0 }kfjdk izlkn eksnh ds mRrjkf/kdkjh gksus ds dkj.k okn edku ij 'kkfey ljhd :i ls LoRok/kjh gSa \| foyksfir A
9-	D;k izfroknh dzekad 03 ^v* ls ^Q* okn edku ds vk/ks fgLls ij dCts ds lkFk lkFk fdjk;s dh vk/kh jde Hkh izkIr djus ds v/kdkjh gS \| foyksfirA

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The trial Court has decreed the suit for ejectment on the ground of section 12(1)(b) of while holding that the property in question was parted with. Both the suits were decided together by order dated 14.05.2018. Against the said judgment and decree, two separate appeals were filed bearing No.13/2018 & 14 of 2018. The appellate Court by its order 02.05.2019 upheld the

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findings arrived at by the trial Court in both the civil suits and maintained the decree of ejectment.

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Learned counsel for the appellants vehemently assailed the judgment & decree of both the courts below. He would submit that the pleading was made with respect to 12(1)(c) of the Chhattisgarh Accommodation Control Act whereas the Court while rejecting the issue decided it on section 12(1) (b). He would further submit that the evidence on record would show that Pratap Singh was acting as Karta of Hindu Joint Family and while tenancy started, Ram Kumar Singh was minor, therefore, tenancy agreement could not be executed with minor and the business could not have been done. Consequently, Pratap Singh, the tenant who was acting as Karta of undivided family continued with the business and subsequently when Ram Kumar Singh became major, he was allowed to continue on rent and continued to carry out the part of business. He would further submit that the receipts of two shops were separately given, which would show that separate tenancy was created. He would also submit that both the courts below have failed to appreciate those facts in proper perspective, as such, the concurrent findings of facts are perverse and cannot be allowed to sustain and the impugned judgment & decree warrants interference by this Court.

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Per contra, learned counsel for the plaintiff Bhagwan Das Modi (respondent herein) would submit that the finding of fact in this regard by both the courts below is to the effect that Pratap Singh has parted with the suit premises and created a sub-tenancy. He refers to the evidence on record and would submit that Ex.P-39 would show that both the brothers have partitioned their property and business and the brother Ram Kumar Singh who was inducted as sub-tenant continued his business in the same premises thereby the subtenancy was created. He referred to the statement and would submit that

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there exists an admission to the effect that business of defendant no.2 Ram Kumar Singh is separate as he was not given the premises on rent and he is carrying on his business in the same premises, which was granted to Pratap Singh, therefore, there is a direct admission to this effect that sub-tenancy is proved. He therefore would submit that the finding of both the courts below cannot be termed as perverse. He referred to a case law reported in (2007) 8 SCC 155 and would submit that considering the finding of facts by both the courts below, no substantial question of law arises for consideration by this Court in the second appeal, therefore, the appeals are liable to be dismissed in limine.

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Heard learned counsel for the parties. Perused the documents and pleadings of the parties. The submission of counsel for the appellants and pleadings with respect to section 12(1)(c ) was made alone, therefore, the finding of 12(1)(b) would be perverse and cannot be appreciated in isolation. When the pleadings are examined at para 3 of the plaint, the plaintiff has categorically pleaded that the defendants are two brothers, they have partitioned their property and has parted with the suit premises, thereby grant u/s 12 (1)(c) is made out, therefore, they are liable to be evicted. This pleading was with respect to nuisance. In continuation of para 4, the pleading exists that defendant no.1 Pratap Singh has allowed defendant No.2 Ram Kumar Singh to continue with the business and Ram Kumar Singh is continuing his business in the name of Thakur Doodh Bhandar , therefore, since the possession of suit premises has been partitioned, they are liable to be evicted. Hence the pleading exists with respect to subtenancy though the particular section has not been quoted. That apart, the suit would show that it was filed in the year 1981 and the issues with respect to sub-tenancy was also framed. Both the parties knowing fully well of the fact that the issue on the sub-tenancy exists went into the trial and adduced the evidence in respect of such issue, therefore, at second appellate stage,

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the defendants/tenants (appellants herein) cannot be allowed to say and raise voice that since the pleading of 12(1)(c) was made in the plaint, the decree u/s 12(1)(b) is bad in law. The plaint has to be read as a whole. Merely because section 12(1)(b) has not been quoted i.e., of sub-tenancy though the pleading of sub-tenancy exists, it cannot be said that the decree under section 12(1)(b) would be bad in law.

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The records would dhow that the suit was filed on 06.01.1984 for eviction. According to the plaint allegation, the tenancy of premises had commenced in the year 1975 which was given on rent to defendant no.1 late Pratap Singh (since deceased) @ Rs.150/- per month to run his hotel business. One of the pleadings in respect of bona-fide need as also illegal construction was also made. The trial Court while framing the issues has not framed issue on the bona-fide need. Whereas in respect of construction/ super-structure, the issue was raised and it was found that it was not proved. The decree is under sub-tenancy i.e., u/s 12(1)(b), therefore, the entire effort of this Court would be confined to the fact that whether the finding about the sub-tenancy is perverse or not.

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Defendant no.1 Pratap Singh in order to protect the possession of defendant No.2, the brother Ram Kumar Singh, has averred before the Courts below and submission has also been made before this Court that he was carrying on business as Karta of the Joint Hindu Family and for the welfare of Joint Hindu Family he started the business. The plaintiff landlord contended that Pratap Singh was inducted as tenant and the part of the shop was parted away by him. Ex.P-4 & Ex.P-5 which are the electricity bills filed in Civil Suit No.40-A/1994 show that Ex.P-4 is in the name of Pratap Singh and Ex.P-5 is in the name of Ram Kumar Singh which is stated by P.W.1. Ex.P-16 is the document named and styled as Thakur Doodh Bhandar , wherein the proprietor/owner is shown to be Ram Kumar

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Singh which is in respect of the premises occupied by brother of original tenant in individual capacity. Thereby it shows that Ram Kumar Singh has a different and distinct entity as he was carrying business in separate name and style. Ex.P-39 is the partition document executed between the two tenants wherein the parties are Pratap Singh, Lok Bhan Singh and Ramkumar Singh, all sons of Harihar Singh Rajput, which shows that partition was effected with respect to the joint Hindu family property. The statements are factually corroborated by the evidence of Ram Kumar Singh wherein at para 21 of the cross examination, he admitted the fact that he and his brother Pratap Singh are carrying on their business separately. The witness Chakradhar Singh in para 15 has admitted that his brother Pratap Singh has taken two shops on rent and for both the shops, Pratap Singh was only the tenant. However, he was unable to explain the fact that how the rent was being deposited in the Court in respect of Pratap Singh and Ram Kumar Singh separately.

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11.Likewise tenancy receipt Ex.P-49 would show that the receipt was issued in the name of Pratap Singh and signed by Ram Kumar Singh on behalf of Pratap Singh whereas Ex.P-16 which is in the name of Thakur Doodh Bhandar would show that in the same premises, milk business was being carried on by Ram Kumar Singh. The permission was also granted to Pratap Singh by Special Development Authority for carrying out certain construction whereas certain receipts were produced by Ram Kumar Singh vide Ex.P-43 & P-44, as such, it shows that though initially the premises was given to Pratap Singh, it was parted with his brother Ram Kumar Singh. Therefore, on the basis of oral and documentary evidence both the courts below came to conclusion that the suit premises in question was parted with which was given on rent to Pratap Singh. Consequently, there is a concurrent finding of fact by both the courts below.

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In order to set aside the concurrent findings, the defendants (appellants) should have placed and demonstrated before this Court that those are the perverse findings. The Supreme Court in Boodireddy Chandraiah vs. Arigela Laxmi (2007) 8 SCC 155 while explaining the meaning of word 'perverse' relating to second appeal laid down the principles in para 24. Clause (iii) of Para 24 is relevant and quoted below :

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“24(iii). The general rule is that High Court will not

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interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inference from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to “decision based on no evidence it not only refers to cases where there is total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.”

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13.Further the Supreme Court in Vishwanat Agrawal v. Sarla Vishwanath

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Agrawal, (2012) 7 SCC 28 has reiterated the view that it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal under Section 100 of CPC. Paras 36 & 37 are relevant here and quoted below :

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In Major Singh v. Rattan Singh (dead) by LRs and others AIR 1997 SC 1906 , it has been observed that when the courts below had rejected an disbelieved the evidence on unacceptable grounds, it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal under Section 100 of the Code of Civil procedure.

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In Vidhyadhar v. Manikrao (1999) 3 SCC 573, it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the courts below are perverse being based

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on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of evidence, the High Court would not be entitled to exercise jurisdiction under section 100 of the Code of Civil Procedure. This view of ours has been fortified by the decision of this Court in Abdul Raheem v. Karnataka Electricity Board AIR 2008 SC 956.

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Further the Supreme Court in Ravi Setia v. Madan lal (2019) 9 SCC 381 has observed that there can be no quarrel with the settled proposition of law that in second appeal, the the High Court ought not to enter into reappreciation of evidence to arrive at new findings, except on pure questions of law. Para 15 reads thus :

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“15. There can be no quarrel with the well settled proposition of law that in a second appeal, the High Court ought not to enter into reappreciation of evidence to arrive at new findings, except on pure questions of law. But if the findings are perverse, based on complete misappreciation or erroneous consideration of evidence and the failure to consider relevant evidence, it becomes a question of law.”

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15.Therefore applying the above principles to the present appeals and in view of the available evidence which is on record, it would show that the findings of the courts below are based on documentary evidence and admission of the defendants itself shows that the premises in question was single tenancy which was given on rent to late Pratap Singh in the year 1961, subsequently by passage of time it was parted with Ram Kumar Singh as one shop was given to him. The tenants and their witnesses admitted the fact that there has been a partition in respect of the suit premises and the business too was carried out by them separately. Therefore, following the principles laid down in Divisional Manager, United India Insurance Company v. Samir Chandra Chaudhary (2005) 5 SCC 784 , the evidentiary value of admission and its effect cannot be ruled out as the

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admission has been held to be a best evidence against the person making admission. The Supreme Court further in Ahmedsaheb (D) by Lrs. Vs. Sayed ismail (2012) 8 SCC 516, para 12 reiterated that it is needless to emphasize that admission of a party in the proceedings either in the pleadings or oral is the best evidence and the same does not need any further corroboration.

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16.In view of the above position of law and applying the principles laid down by the Supreme Court to the facts of the present appeals and further considering the evidence available on records, I am of the considered view that the concurrent findings arrived at by both the courts below cannot be termed as perverse or is based on no evidence. Rather the finding is based on admissions made by the parties. In view of this, no substantial question of law arises for consideration in these appeals. Accordingly, both the appeals sans merit and are dismissed.

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Sd/GOUTAM BHADURI JUDGE

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R a o

Pratap Singh (Dead) v. Bhagwan Das Modi

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Pratap Singh (Dead) v. Bhagwan Das Modi

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