Dismissed

Shri Gopal Krishan Dolya Son of Dwarka Prasad Dolya, v. Pushkar Narayan Dharmawat Son of Surajmal Dharmawat, (Deceased through Its Legal Heirs)

Rajasthan HC5 Apr 2024CSA/51/2021

Case brief

AI extract

What is this about?

The High Court dismissed the Civil Second Appeal, holding that no substantial question of law arose to interfere with the concurrent findings of the Trial Court and Appellate Court regarding the eviction of a tenant and the applicability of the Rent Control Act.

What did the court decide?

Civil Second Appeal dismissed with pending applications, if any.

Shri Gopal Krishan Dolya Son of Dwarka Prasad Dolya… — Landlord and Tenant | Rajasthan HC (2024)

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[2024:RJ-JP:41954]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 51/2021

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Shri Gopal Krishan Doiya Son Of Dwarka Prasad Dolya, Aged About 65 Years, R/o Varah Chowk, Choti Basti Pushkar District Ajmer.

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----Appellant

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Versus

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Pushkar Narayan Dharmawat Son Of Surajmal Dharmawat, (Deceased Through Its Legal Heirs),

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1/1. - Smt Shashi Bala W/o Girdhari Lal Ji, Parashar And Daughter Of Late Shri Pushkar Narayan Dharmawat Age About 69 Years R/o Ramghat Badi Basti Pushkar District Ajmer.

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1/2. - Manoj Kumar Joshi Aged About 46 Years Son Of Late Shri Mahesh Kumar Joshi And Late Nirmla Devi D/o Late Shri Pushkar Narayan Dharmawat Age About 69 Years R/o Kalo Ka Mohalla, Badi Basti, Pushkar District Ajmer.

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1/3.- Smt Meenakshi Devi Age About 39 Years W/o Rajesh Kumar Pathak And D/o Late Shri Mahesh Kumar Joshi And Late Nirmal Devi D/o Late Shri Pushkar Narayan Dharmawat R/o Parikrama Marg, Badi Basti, Pushkar District Ajmer.

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1/4.- Hemant Parashar Age About 31 Years, Son Of Late Shri Omnarayan Parashar Grand Son Of Late Shri Pushkar Narayan Dharmawat R/o Udaipura Mohalla, Badi Basti, Pushkar District Ajmer.

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1/5.- Smt. Deepika Parasharm Age 29 Yeras W/o Apoorva Rathi And D/o Lae Omnarayan Parashar Grand D/o Late Shri Pushkar Narayan Dharmawat R/o Dolidhara, Badi Basti Pushkar District Ajmer.

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1/6.- Laxminarayan Aged About 58 Years Son Of Late Shri Pushkar Narayan Dharmawat R/o Udaipura Mohalla, Badi Basti, Pushkar District Ajmer.

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1/7.- Rajnarayan Age About 56 Years Son Of Late Shri Pushkar Narayan Dharmawat R/o Udaipura Mohalla, Badi Basti, Pushkar District Ajmer.

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1/8.- Smt Kaveri Devi Age About 83 Years W/o Late Shri Pushkar Narayan Dharmawat R/o Udaipura Mohalla, Badi Basti Pushkar District Ajmer.

----Respondents

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[2024:RJ-JP:41954]

[CSA-51/2021]

For Appellant(s)	: Mr. Dilip Sharma
For Respondent(s)	: Mr. Rahul Agarwal with
	Ms. Priyanka

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Judgment / Order

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05/04/2024

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Instant second appeal is preferred by appellant-defendant aggrieved from dismissal of Civil Regular Appeal No.14/2019 on 19.01.2021 by learned Additional District Judge No.1, Ajmer, filed aggrieved from judgment and decree dated 23.07.2019 in Civil Suit No.17/2009 passed by learned Civil Judge, Pushkar, District Ajmer wherein a suit for possession (eviction) was decreed with arrears of rent.

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Learned counsel for appellant-defendant submitted that plaintiff-respondent has filed a suit for eviction before the Civil Judge under the provisions of Transfer of Property Act on the ground that after a notice under the Transfer of Property Act, the tenancy of appellant was determined and a suit for eviction was filed by the plaintiff. He submitted that the Trial Court without considering the legal provision of the Transfer of Property Act has allowed the plaint and decreed the suit. He further submits that even Appellate Court has not considered grounds raised by the appellant. He submits that the notice under Section 106 of Transfer of Property Act was never served upon the appellant and the plaintiff was not able to prove this fact that after service of notice a period of 30 days was granted for termination of tenancy. He also raised an issue that the plaintiff did not appear as a

[2024:RJ-JP:41954]

[CSA-51/2021]

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witness in the witness box, therefore, the suit was not proved as per law. He also submitted that the Rajasthan Rent Control Act, 2001 was already made applicable since 22.02.2006, therefore, the notice under Section 106 of TP Act, is not attracted in the instant case. He submits that the very basis of the plaint was contrary to law and the Trial Court has committed serious error while deciding issue no.6 against the appellant. Atlast, he submitted that there are legal issues as raised by appellant in para no.11 of memo of appeal, which give rise to substantial question of law and same require adjudication.

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Aforesaid contentions were opposed by learned counsel for respondents-plaintiffs on the ground that the suit for eviction and arrears of rent was filed before the Trial Court and the Trial Court after considering evidence on record has decreed the suit in favour of plaintiffs. He further submits that on an appeal preferred by present appellant, the learned Appellate Court has also considered the grounds as raised by the appellant. He further submits that there is concurrent findings of the Courts below and on factual issues this Hon’ble Court has always refrained from entertaining second appeal. He further submits that even if the notice is not served even then notice of suit can be considered as notice to vacate the suit property, therefore, there is no legal defence available to the appellant.

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Heard learned counsels for the parties and perused the material placed on record. Also considered judgment in case of Biswanath Agarwalla Vs. Sabitri Bera & Ors. (2009) 15 SCC

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693 referred by learned counsel for appellant.

[2024:RJ-JP:41954]

[CSA-51/2021]

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The facts giving rise to file this instant appeal clearly indicates that initially a suit for eviction was filed by the plaintiffPushkar Narayan Dharmawat (since deceased) against appellantdefendant (tenant) after serving a notice under Section 106 of the Transfer of Property Act. The defendant has filed written statement raising objection of non maintainability of suit. Issue no.6 was specifically framed on basis of objection raised by defendant. Learned Trial Court has decided issue nos.1, 4 and 5 in favour of plaintiff and issue nos.2 and 3 partially in favour of plaintiff. While considering issue no.6 relating to maintainability of suit under the Transfer of Property Act, particularly after applicability of Rajasthan Rent Control Act, 2001 from 22.02.2006 observed that defendant has not submitted any law or evidence on this issue. On the basis of non submission of law and evidence on issue no.6, the issue was decided against the present appellantdefendant.

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When appeal has been filed before the Appellate Court under Section 96 of CPC then again several grounds were raised but on this issue no.6 again no arguments were raised before the First Appellate Court and ultimately this issue no.6 was decided against the appellant-defendant.

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As regard to service of notice under Section 106 of TP Act is concerned, the Trial Court has dealt with this issue in detail and ruled against the appellant-defendant. Similarly, the Appellate Court has also considered the law submitted before the Court concerned. The appellant-defendant is well aware since 2009 about termination of tenancy and demand of possession by the plaintiff-respondent, therefore, the ground of non-service of notice

[2024:RJ-JP:41954]

[CSA-51/2021]

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is not available to the appellant-defendant and same is not a legal issue, which requires consideration on merits.

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As regard to applicability of Rajasthan Rent Control Act, 2001 in the municipal area is concerned this issue has specifically been framed by the Trial Court and there are no contentions raised before the Trial Court except for taking an objection in the written statement. Similarly, while pursuing the appeal under Section 96 of CPC, this issue was before the First Appellate Court but again no contentions were raised. Even assuming that the Rent Control Act is applicable since 2006 but the Rent Control Act does not bar a suit under the Transfer of Property Act. Herein, the suit was filed on grounds as mentioned in Rajasthan Rent Control Act which includes reasonable and bona fide necessity. The Trial Court has considered the evidence of both the parties. Once, the grounds were not raised before the two Courts and there is concurrent finding then same can be raised at the stage of second appeal.

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In case of Biswanath Agarwalla Vs. Sabitri Bera & Ors. (supra) after serving of notice under Section 106 of Transfer of Property Act, a civil suit was filed only on the basis of tress pass by a subsequent purchaser of a suit property. Hon’ble Supreme Court after considering facts and circumstances of the case is remitted back the suit for specific issues after permitting plaintiff to raise the grounds before the Trial Court. This judgment is not applicable in the facts and circumstances of the case.

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Having considered the grounds as raised herein, a fact is quite clear that there is a concurrent findings of facts, particularly, in a dispute between landlord and tenant. The dispute is pending for more than 15 years and looking to the grounds raised herein,

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there is no substantial question of law which requires adjudication on merits.

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In order to determine the substantial question of law we have to consider the test laid down by the Constitution Bench of Hon’ble Supreme Court in case of Chunilal V. Mehta & Sons. Ltd. Vs. Century Spg. and Mgf. Co. Ltd . AIR 1962 SC 1314 Hon’ble Supreme Court has observed has observed as under:

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"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

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In case of Amar Singh Vs. Dalip Singh (2012) 13 SCC

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405 , Hon’ble Supreme Court explained the purpose of framing

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question of law in following manner:

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“a) The purpose of framing of substantial question of law is to give the parties an opportunity to come prepared on that particular question.

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b) When a substantial question of law is formulated by the Court then the same must be made known to parties and thereafter they have to be given an opportunity to advanced arguments thereon.

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c) If any additional questions were framed at the time of hearing, the Court must hear the parties on that question as well.”

[2024:RJ-JP:41954]

[CSA-51/2021]

(7 of 7)

Hon’ble Court in case of Chandrabhan Vs. Saraswati 2022 SCC

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Online (SC) 1273 (decided on 22.09.2022) has summarised

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principle relating to Section 100 of CPC in following words:-

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“(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof.”

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Hon’ble Supreme Court in case of Suresh Lataruji Ramteke versus Sau. Sumabai Pandurang Petkar & Ors. (Civil Appeal No. 6070/2023, arising out of SLP(C)No.20183 of 2022 decided on 21.09.2023) referred to the judgments and observed that the general rule is that the High Court will not interfere with the concurrent findings of the Courts below but same is not an absolute rule. The requirement, most fundamental under this section is the presence and framing of a “substantial question of law”. In other words, the existence of such a question is sine qua non for exercise of this jurisdiction.

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In view of aforesaid, there are no grounds for admission as no substantial question of law is made out from the facts and circumstances of the case.

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Hence, the civil second appeal is dismissed with pending application(s), if any.

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No order as to cost.

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(ASHOK KUMAR JAIN),J

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Arun/28

Shri Gopal Krishan Dolya Son of Dwarka Prasad Dolya, v. Pushkar Narayan Dharmawat Son of Surajmal Dharmawat, (Deceased through Its Legal Heirs)

Case brief

What is this about?

What did the court decide?

Shri Gopal Krishan Dolya Son of Dwarka Prasad Dolya, v. Pushkar Narayan Dharmawat Son of Surajmal Dharmawat, (Deceased through Its Legal Heirs)

Case brief

What is this about?

What did the court decide?

What the court decided

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