The High Court of Rajasthan dismissed the second appeal filed by a tenant against the eviction decree of a plaintiff landlady. The court held that the tenant's plea of adverse possession was untenable and that the question involved was purely factual, warranting no interference in the second appeal.
The second appeal was dismissed with costs awarded to the respondent.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Second Appeal No. 193/2018
Sohanlal S/o Late Gopilal, aged about 70 Years, B/c Kori, R/o Khalasi Line, Mount Abu, District Sirohi (Raj.)
----Appellant
Versus
Tarabhen W/o Late Motilal, R/o Mount Abu, Presently residing at 184-A, Sarvottam Society, Sabarmati, Ahmedabad (Guj.)
----Respondent
For Appellant(s) : Mr. T.S. Champawat
HON'BLE MR. JUSTICE P.K. LOHRA
Judgment
14/11/2018
Appellant-defendant, has preferred this second appeal against impugned judgment & decree dated 25th of July, 2018, passed by Addl. District Judge No.2, Abu Road, Sirohi (for short, ‘learned first appellate Court’), whereby the appeal of the defendant has been dismissed and judgment and decree dated 28th of November, 2016, passed by Sr. Civil Judge, Mount Abu (for short, ‘learned trial Court’), decreeing the suit filed by respondentplaintiff has been affirmed.
The brief facts are that landlady, respondent-plaintiff, a widow, wishing to live in the house purchased by her husband for peaceful living at Mount Abu, filed a suit against appellantdefendant for eviction, recovery of rent and damages in respect of house property in question situated at Khalasi Line, Mount Abu,
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stating therein that appellant-defendant is tenant of rented premises with rent of Rs.22 per month but has not paid rent for long. It is averred in the plaint that as per law she is entitled to get rent only for a period of last three years as such the outstanding rent is claimed only for the period from 01.06.2008 to 30.04.2011 @Rs.22 per month and damages. The plaintiff further averred that she requires the tenanted premises for her own use and occupation as her husband has already died and she wish to spend rest of her life at Mount Abu as such possession of the disputed property is required. In the plaint, it was also specifically averred that a notice was sent to defendant-appellant on 27.09.2010 terminating his tenancy w.e.f. 31.10.2010 and asking him to vacate and handover the possession of disputed property, which was received by him yet the house was not vacated and its possession was not handed over, therefore, cause of action accrued to her on 31.10.2010.
The suit was contested by appellant-defendant and a written statement was filed with cross-suit refuting the averments rather denying the relationship of tenant and landlord. In the written statement, the appellant averred that no notice was ever received by him from plaintiff as such no cause of action arose and prayed for dismissal of the suit. In the cross-suit, it was stated that he was residing in the disputed house for last more than 30 years and though he had heard about buying disputed property by the plaintiff about 15 years back but none had approached him and he was staying in the house without any objection peacefully and
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openly. He prayed for declaring him absolute owner due to adverse possession.
The learned trial Court framed three issues for determination and rival parties adduced their evidence. Respondent-plaintiff, Taraben (PW1) herself appeared in the witness box and testified on oath and also exhibited 10 documents to prove her case. In defence, appellant-defendant Sohanlal (DW1) appeared himself and produced Ramesh (DW2) in the witness box for substantiating his case and exhibited 7 documents. The learned trial Court, while deciding issue No.1 relating to termination of tenancy vide notice 27.09.2010, recorded its finding in favour of respondent-plaintiff and against the appellant-defendant. Learned trial Court also decided issue No.2 about appellant-defendant being owner of the suit property on the basis of adverse possession, the burden to prove the same rested on appellant-defendant, which was decided against him. As regards, issue No.3 in respect of filing cross-suit under Order 7 Rule 11 CPC by the appellant-defendant without sufficient court-fee was also decided against him by overruling the objection raised by him. The learned trial Court found proved the landlord-tenant relationship between plaintiff and defendant so also the fact of terminating the tenancy through notice dated 27.09.2010. Accordingly, the suit was decreed directing the appellant-defendant to handover the vacant possession of the suit premises to plaintiff-respondent within a period of three months from the date of judgment and declared the plaintiff-respondent entitled for arrears of rent amounting to Rs.770 from appellantdefendant as per monthly rent of Rs.22 and also damages for use
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and occupation at same rate till receipt of vacant possession of the premises.
Being disdained by the judgment and decree of learned trial Court, appellant-tenant preferred appeal before learned first appellate Court. The first appellate Court, vide its judgment and decree dated 25th of July 2018, upheld the judgment and decree passed by the learned trial Court. The learned first appellate Court appreciated the evidence afresh in strict adherence of Order 41 Rule 3A CPC while recording its concurrence with the findings and conclusions of learned trial Court on all the issues. This sort of situation entailed dismissal of first appeal of the appellantdefendant.
Learned counsel for the appellant has argued that respondent-plaintiff has miserably failed to prove her case inasmuch as she could not prove requisite grounds for eviction. Assailing the testimony of plaintiff, learned counsel for the appellant would urge that her statements are absolutely vague and cryptic and on the strength of those statements the grounds for eviction are not fully proved. Learned counsel has contended that the ground for eviction, viz., title, has been misconstrued by both the Courts below and the same has not been thrashed out in the light of other facts and circumstances, which were pleaded and proved by the appellant. Making scathing attack on the statement of plaintiff about serving notice, learned counsel has argued that the respondent-plaintiff was not competent to serve
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such notice. Learned counsel has, therefore, strenuously urged that substantial questions of law are involved in the instant appeal, which require adjudication for reversal of the judgments and decrees of the Courts below. In support of his contentions learned counsel for the appellant has placed reliance on following judgments:
(1) Kewal Chand Mimani (D) by Lrs Vs. S.K. Sen & Ors. [(2001) 6 SCC 512)]
(2) C. Ramalingam Vs. C. Ramasamy & Anr. [2002 Supreme (Mad) 815]
I have heard the learned counsel for the appellant and perused the impugned judgments of both the Courts below.
In the instant case, the notice terminating tenancy was given by the plaintiff for vacating the suit premises is a legal one in view of the fact that the suit property was purchased in the name of respondent-plaintiff, which was sold by her predecessor-in-title and the defendant has not denied his tenancy in the suit premises with the earlier owners. It is also noticed by both the learned Court below that appellant-defendant had though controverted the averments to the extent of not receiving but failed to substantiate it. The cross-suit for claiming relief as owner of the property on the doctrine of adverse possession was also found wholly untenable.
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On thoroughly examining the impugned judgments, it is crystal clear that both the learned Courts below have recorded an affirmative finding in favour of respondent landlady placing reliance on the evidence tendered by respondent-plaintiff in this behalf. I am aghast as to how a plea of adverse possession can be raised by a tenant because once a tenant is always a tenant. Possession of a tenant on rented premises is under same form of tenancy agreement. Having admitted his status as tenant of predecessor-in-title of the plaintiff-respondent, plea sought to be raised on behalf of appellant by invoking doctrine of adverse possession was wholly untenable and therefore rightly discarded by both the Courts below. As the learned trial Court has recorded a finding of fact by marshalling the evidence and the learned appellate Court, while fully concurring with the said finding of fact, has affirmed the same, there is obviously no reason for this Court to upset the said finding of fact in the second appeal. The second appeal is entertainable only when there is substantial question of law involved in the matter. In view of the foregoing discussion, the substantial questions of law proposed by the appellant are pure and simple questions of fact and in second appeal Court is not obliged to enter into factual arena. The concurrent finding of fact recorded by both the Courts below is based on sound appreciation of evidence and there is no perversity in the unison finding much less any misreading of evidence or eschewing the material evidence. The judgments relied upon by the learned counsel for the appellant, in the peculiar facts and circumstances of the case, are clearly distinguishable and are of no assistance to the appellant. Thus,
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the instant appeal is bereft of any question of law much less
substantial question of law, merits rejection.
Resultantly, appeal being devoid of any force fails and is hereby dismissed.
Costs are made easy.
(P.K. LOHRA),J
3 issues framed by the court
Whether the second appeal raised substantial questions of law to be entertained.
Whether a tenant can claim adverse possession against the landlord.
Whether the concurrent findings of fact made by courts below should be disturbed in second appeal.
Colour shows how this judgement treated each authority
Kewal Chand Mimani (D) by Lrs Vs. S.K. Sen & Ors.Distinguished¶35
Kewal Chand Mimani (D) by Lrs Vs. S.K. Sen & Ors. [(2001) 6 SCC 512) · Who else cites this
C. Ramalingam Vs. C. Ramasamy & Anr. [2002 Supreme (Mad) 815]Distinguished¶35
Sohanlal S/o Late Gopilal
Tarabhen W/o Late Motilal
P.K. LOHRA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
