Dismissed

Pratap Singh and Ors. v. Oswal Singh Sabha through Scretary Prasann Chand

Rajasthan HC25 Oct 2018CSA/132/2018

Case brief

AI extract

What is this about?

Disposes of a second appeal challenging eviction and arrears of rent. The High Court held that no substantial question of law arose as the lower courts recorded concurrent findings of fact based on proper evidence appreciation. The appeal was dismissed.

What did the court decide?

Second Appeal No. 132/2018 dismissed for lack of merit with no substantial question of law found.

Pratap Singh and Ors. Vs Oswal Singh Sabha through Scretary… — Partition | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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S.B. Civil Second Appeal No. 132/2018

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Pratap Singh S/o Late Shri Chote Lal Kachhwah

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LRs of Bhawani Singh

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2/1 Smt. Sushila Devi W/o Late Shri Bhawani Singh

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2/2 Tarun S/o Late Shri Bhawani Singh

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2/3 Manish S/o Late Shri Bhawani Shingh

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2/4 Rashmi D/o Late Shri Bhawani Singh

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2/5 Geeta @ Rita D/o Late Shri Bhawani Singh

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All by caste Rajput, R/o Girdhari Singh Ji Ka Nohra, Near Mahatma Gandhi School, Jodhpur.

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Hari Singh S/o Late Shri Chote Lal Kachhwah, Both R/o Girdhari Singh Ji Ka Nohra, Near Mahatma Gandhi School, Jodhpur.

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----Appellants/Defendants

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Versus

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Oswal Singh Sabha through Secretary Prasann Chand s/o Shri Ghewar Chand Mehta Oswal, Community Center, Near Central Telegram Office, Sardarpura, Jodhpur.

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----Respondent/Plaintiff For Appellant(s) : Mr. P.M. Vyas For Respondent(s) : Mr. R.K. Thanvi, Sr. Advocate assisted by Mr. Narendra Thanvi.

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HON'BLE MR. JUSTICE P.K. LOHRA

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Judgment

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25/10/2018

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Appellant-defendants have laid this second appeal under Section 100 CPC to assail judgment & decree dated 16^th of February, 2018, passed by Addl. District Judge No.4, Jodhpur

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(2 of 6)

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[CSA-132/2018]

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Metropolitan (for short, ‘learned first appellate Court’), whereby learned first appellate Court has affirmed the judgment and decree dated 24^th of April, 2017, passed by Addl. Civil Judge & Metropolitan Magistrate No.3, Jodhpur Metropolitan (for short, ‘learned trial Court’), allowing the suit of the plaintiff-respondent for arrears of rent and eviction.

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Brief facts of the case are that respondent-plaintiff laid a suit for eviction & recovery of arrears of rent against appellantdefendants on the ground of default in payment of rent, inter-alia, stating therein that the suit premises, Quarters No.20 & 27, Girdhari Singh Ji Ka Nohra, Near Mahatma Gandhi School, Jodhpur, were rented out to defendants’ father Chhotelal on monthly rent of Rs.7 but time and again he defaulted in payment of rent as such the matter was taken up in litigation before the court concerned by filing various suits for eviction on the ground of default in payment of rent. First of such suit was filed way back in the year 1958 against father of defendants in which decree was passed despite that on the request of Chhotelal he was not evicted and tenancy continued. However, Chhotelal again defaulted in payment of rent and another suit was filed by plaintiff against him in the year 1965 but that suit was closed on depositing the arrears of rent giving him benefit of first default at his request. Chottelal defaulted once more in payment of rent, which led to filing of one more suit against him in the year 1978 but he expired during the pendency of the suit and later on his legal heirs compromised the matter with the plaintiff by depositing the arrears of rent. As the property in question was with Receiver appointed by Addl. District

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(3 of 6) [CSA-132/2018]

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Judge No.3 in Civil Original Suit Nos.146/78 and 135/95, after decision in those cases the property in question came in possession of the plaintiff on 31.12.1996 yet the legal heirs of defendant Chhotelal did not tender or paid rent to the plaintiff and on account of second default the appellant-defendants became unauthorized occupants and are liable to be evicted. With these averments the plaintiff prayed for decreeing the suit with costs.

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Appellant-defendants filed written statement to the suit but as the right to defend was already closed by the superior Court of Addl. District No.6 in Case No.3/14, the same was not taken into consideration by the trial Court.

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Learned trial Court, on the basis of the pleadings, framed two issues for determination. In support of their case, respondent-plaintiff examined two witnesses PW1 Prasann Chand Mehta and PW2 Sampatraj and in documentary evidence produced Exs.1 to 9. Finally, the learned trial Court, by its judgment & decree dated 24.04.2017 decreed the suit against appellantdefendants. Feeling aggrieved by the same, appellants preferred an appeal before the first appellate Court. The first appellate Court dismissed the appeal and affirmed the judgment & decree of learned trial Court.

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Mr. P.M. Vyas, learned counsel for the appellants, submits that the findings of learned Courts below are perverse and not in consonance and conformity with the evidence and other materials on record. Learned counsel would contend that both the Courts

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(4 of 6)

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[CSA-132/2018]

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below have not examined the lis involved in the matter in right perspective and, while non-suiting the appellants, material facts were completely overlooked. Mr. Vyas submits that even if there is a concurrent finding of fact, this Court is not loathed with the power to examine the perversity of the findings recorded by the Courts below. Mr. Vyas further submits that as regards powers of the Secretary of the respondent-plaintiff to take proceedings in the matter, on behalf of plaintiff, cannot be given credence by mere marking of exhibits in absence of any evidence of its members. Mr. Vyas contended that quarter numbers as indicated by plaintiff were denied as no marking was on the quarters as such adverse inference could not have been drawn against the appellant-defendants which renders the impugned judgments & decrees vulnerable, and therefore, substantial questions of law are involved in present appeal, which require adjudication by this Court.

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Mr. R.K. Thanvi, learned Senior Advocate assisted by Mr. Narendra Thanvi, appearing for the respondent-plaintiff submits that it is pure and simple case of concurrent finding of fact recorded by both the Courts below, and therefore, the impugned judgments require no interference in this second appeal. Learned Senior Counsel Mr. Thanvi contends that both the learned Courts below have recorded the concurrent findings based on sound appreciation of documentary and oral evidence, which cannot be disturbed in second appeal. It is contended that for entertaining a second appeal, involvement of substantial question of law is sinequa-non but no substantial question of law is involved in present

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(5 of 6)

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[CSA-132/2018]

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appeal and the findings, which are sought to be impugned in the present appeal are based on facts and appreciation of evidence as such do not call for any interference by this Court under Section 100 CPC.

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I have heard learned counsel for the parties, perused the judgments of first appellate Court as well as learned trial Court.

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Upon perusal of the judgments rendered by both the Courts below, in my opinion, both the Courts below have not committed any error much less manifest error in appreciation of evidence. The finding of fact recorded by learned trial Court is based on sound appreciation of evidence and the learned first appellate Court, while examining the matter de novo in the light of available material, has fully concurred with the evidence and conclusions of the learned trial Court. Therefore, the instant one is a case wherein both the Courts below have recorded concurrent finding of fact based on proper appreciation of evidence. The legal position is no more res integra that in second appeal normally Court is not expected to interfere with the concurrent finding of fact unless it is shown that finding is perverse, contrary to evidence available on record, or recorded in ignorance of vital evidence. No such situation is forthcoming in the instant appeal. This being the position, I am constrained to observe that no question of law much less substantial question of law is forthcoming in the instant appeal requiring adjudication in exercise of second appellate jurisdiction. The so called proposed substantial questions of law are pure questions of facts and it is

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(6 of 6) [CSA-132/2018]

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trite that while exercising second appellate jurisdiction, Court cannot enter into factual arena. In absence of any substantial question of law involved in present appeal, no interference is warranted in exercise of jurisdiction under Section 100 CPC.

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In view of foregoing discussion, I find no merit in the instant

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appeal, and therefore, the same is accordingly dismissed.

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(P.K. LOHRA),J

Pratap Singh and Ors. v. Oswal Singh Sabha through Scretary Prasann Chand

Case brief

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Pratap Singh and Ors. v. Oswal Singh Sabha through Scretary Prasann Chand

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