Damodar Lal versus Sohan Devi and Others

Code of Civil Procedure, 1908 - s. JOO - Second appeal - Substantial question of law - Eviction of tenant on the ground of unauthorised construction by trial court - Said order upheld by first appellate court - High Court allowed the second appeal 011 a pure question of fact, setting aside concurrent finding of courts · below - On appeal, held: High Court was wholly wrong, if not, perverse - It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact - Their inference on facts is certainly reasonable - Strained effort made by the High Cour·t in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law - Thus, the judgment of the High Court set aside and that of the trial court as upheld by first appellate court restored.

¶11

Allowing the appeal, the Court

¶12

'

¶13

HELD: 1.1 Only the trial court came to the definite finding on structural alteration in a tenanted premises. That finding was endorsed by the first appellate court on re-appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. Both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself would not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity. [Para 13] [612-D-F]

607

c

D

E

F

G

H

608

SUPREME COURT REPORTS

¶23

[2016) l S.C.R.

¶24

A 1.2 The High Court was wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. B Therefore, the impugned judgment of the High Court is set aside and that of the trial court as confirmed by the appellate court is restored. However, the respondents-tenants are given time upto 31" March, 2017 to use the premises and pay occupation charges at the rate of Rs.10,000/- per month. [Paras 16-17] [614-E-H; c 615-A]

¶25

Krishnan v. Backiam and another 2007 (9) SCR 901: (2007) 12 SCC 190; Gurvachan Kaur and others v. Sa/ikram (Dead) Through Lrs. (2010) 15 SCC 530; Ku/want Kaur and others 1' Gurdial Singh Mann (Dead)

¶26

D by Lrs. 2001 (2) SCR 525 : (2001) 4 SCC 262; S.R. Tiwqri 1' Union of India 2013 (8) SCR 988 : (2013) 6 SCC 602; Rajinder Kumar Kindra v. Delhi Administration, Through Secretary (Labour) and others 1985 (1) SCR 866 : (1984) 4 SCC 635 - referred

¶27

to.

¶28

E

¶29

F

¶30

	Case Law Reference
2007(~)SCR901	Referred to. Para10
(2010) 15sec530	Referred to. Para11
2001 (2)SCR525	Referred to. Para14
2013fl!)SCR988	Referred to. Para15
1?85 (1)SCR866	Referred to. Para15
CIVIL APPELL of2015	ATE JURISDICTION : Civil Appeal Nos.231

¶31

From the Judgment and Order dated 27.09.2012 at the High Court ofJudicature for Rajasthan atJodhpur, in S. B. Civil Second Appeal No. G 109 of2000.

¶32

Pallav Shishodia, Rishabh Sancheti, Padma Priya, T. Mahi pal for the Appellant.

¶33

Subrat Birla, S. C. Birla for the Respondents.

¶34

H The Judgment of the Court was delivered by

¶35

609

¶36

DAMODAR LAL v. SOHAN DEVI

¶37

KURIAN, J.:1.The facts unfold the plightofa poor landlord languishingincourts for over fourty years. The case gets sadder when we note that appellant had been successful bothinthe trial court and the first appellate court and the saddest part is thatthe High Courtinsecond appeal, went against him on a pure questionoffact! 2. Issue number-3 framedinCivil Regular Suit No.191of1974 for eviction on the groundofunauthorised construction/material alteration, decided on 21.12.1989inthe CourtofMunsiff, Bhilwara, Rajasthan, reads as follows: "Whether the tenant has carried out permanent construction on the plot thereby causing a permanent changeinthe identityofthe plot against the termsofthe rent agreement?"	A B c
3. Having analysed and appreciated the evidenceofPWs-1 and 2 and also DWs-1to4,the trial court came to the following findingonthe issue:
"Thus all the witnessesofboth sides have stated that when the plot was taken on rent, at that time, the plot was empty. The disputed plot was taken on rent. Later walls were constructed; sheets were put and were taken into use as shop and godown. Even today the plot is being used as shop and godown."	D E
4. Dissatisfied, the tenants tookupthe matterinappeal before the Courtofthe Additional District Judge-I, Bhilwara, RajasthaninCivil Appeal No.20of1999(originally presented before the District Judge, Bhilwara, Rajasthanon19.01.1990 and since transferred to the Additional District Judge).Inthe judgment dated 22.09.2000, the first appellate court, after re-appreciating the whole evidence, came to the conclusion that:	F
" ...Inmy opinion the evidence that had been presented before the subordinate court, the subordinate court has not made any mistakeincoming to the conclusion that the tenant has made structural changesinthe rented accommodation. The appellant tenant has not been able to present any evidence to show that the consentofthe land lord had been taken before making structural changes...."	G
5.On such findings, the appeal was dismissed. Thus, there are two findingsoffact against the tenants/respondents.	H

¶38

610

¶39

SL:PREME COL¹ RT REPORTS

¶40

(2016] I S.C.R.

¶41

A 6. The tenants pursued the matter in Second Appeal No. I 09 of 2000 before the High Court of Rajasthan which was allowed by the impugned judgment dated 27.09.2012. The following were the substantial questions of law framed in the second appeal:

¶42

B

¶43

"(1) Whetheron the facts and in the circumstances of this case, the learned courts below have erred in granting a decree for eviction on the ground of material alteration while ignoring the relevant considerations and proceeding on irrelevant considerations.

¶44

c

¶45

(2) Whether on the facts of this case, the learned courts below have erred in not drawing adverse inference for nonappearance of the plaintiff Damodar Lal in the witness box?"

¶46

The High Court, in the second appeal, came to the conclusion that the concurrent finding on structural change, in the absence of the D statement of the plaintiff before the court, cannot be treated to be trustworthy. The High Court went further and held that adverse inference should have been drawn for the non-appearance of the plaintiff in the witn1~ss box, and in such circumstances, the finding on material alteration is to1tally perverse. We feel it necessary to quote the relevant portion from the impugned judgment:

¶47

E

¶48

" ... In the considered opinion of this Court, such finding in the statement of the plaintiff cannot be treated to be trustworthy or in consonance with law. The trial court was under obligation to draw adverse inference for the non-appearance of the plaintiff in the witness-box. On the contrary, it has relied upon the statement of

¶49

F P. W.-1 Rameshwar Lal who was the previous owner of the property from whom the plaintiff purchased the said property.

¶50

Therefore, the finding arrived at by the trial court on the issue

¶51

of material alteration is totally perverse and not based upon sound and trustworthy evidence. The trial court has committed gross

¶52

G error while not drawing adverse inference for non-appearance of the plaintiff Damodar Lal because he was the only witness to prove the fact of material alteration by way of producing documentary evidence which is the registered sale-deed executed by Rameswhwar Lal in favour, so also, his oral statement."

¶53

H 8. And thus, the High Court allowed the second appeal and the

¶54

611

¶55

DAMODAR LAL v. SOHAN DEVI [KURIAN, J.]

¶56

suit for eviction was dismissed. Aggrieved, the landlord is before us in A t~e civil appeal.

¶57

'Perversity' has been the subject matter of umpteen numberof decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse. I 0. In Krishnan v. Backiam and another¹ , it has been held at paragraph-I I that: "11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect. ... "

B

c

D

In Gurvachan Kaur and others v. Salikram (Dead) Through Lrs.² , at paragraph-I 0, this principle has been reiterated: "1 O. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent."

¶62

E

¶63

F

¶64

In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the defendants/respondents to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the ' (2007) 12 sec 190 2 (20IOJ 15 sec 530

G

H

612

[2016] 1 S.C.R.

SUPREME COURT REPORTS

¶70

A exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-I is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW-2 has also supported the case of the plaintiff.

¶71

B Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes.

¶72

Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable c evidence. That burden has been successfully discharged by the plaintiff by examining PWs-l and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has D been endorsed by the first appellate court on re-appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions oflaw. Even ifthe finding of fact is wrong, that by itself will not constitute a question of law. The wrong E finding should stem out on a complete misreading ofevidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. lfnot, the finding is perverse. F Inadequacy of evidence or a different reading of evidence is not perversity.

¶73

In Kulwant Kaur aud others v. Gurdial Singh Mann filead) by Lrs.', this Court has dealt with the limited leeway available to the High Court in second appeal. To quote paragraph-34:

¶74

G "34. Admittedly, Section I 00 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required

¶75

H '(2001)4SCC262

¶76

DAMODAR LAL v. SOHAN DEVI [KURIAN, J.]

¶77

613

¶78

to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should.also be categorical as to the issue of perversity vis-it-vis the concept of justice. Needless to. say however, that perversity itself is a substantial question worth adjudication - what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:

¶79

"l 03. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,-

A

B

c

D

(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or

¶85

(b) which has been wrongly determined by such court or courts by reason of a decision on such question oflaw as is referred to in Section 100."

¶86

The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law.

¶87

E

¶88

F

¶89

We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."

¶90

In S. R. Tiwari v. Union of India', after referring to the decisions of this Court, starting with Raiinder Kumar Kindra v. Delhi Administration, Through Secretary (Labour) and others'. it was held at paragraph-30:

• (2013) 6 sec 602

'(1984) 4 sec 635

G

H

614

SUPREME COURT REPORTS

¶97

(2016] 1 S.C.R.

¶98

A

¶99

A "30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of

¶100

B irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the

¶101

c findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805] , Ku/deep Singh v. Commr. of Police [( 1999) 2 sec 1 o : I 999 sec (L&S) 429 : AIR 1999 sc 677] , Gamini Bala Koteswara Rao v. State of A.P [(2009) I 0 sec 636: (2010) 1 sec (Cri) 372: AIR 2010 sc 589]

¶102

D and Babu v. State of Kerala[(20 I 0) 9 SCC 189 : (20 I 0) 3 SCC (Cri) 1179] .)"

¶103

This Court has also dealt with other aspects of perversity.

¶104

We do not propose to discuss other judgments, though there is

¶105

E plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart

¶106

F from being impermissible under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court.

¶107

At this juncture, learned Counsel appearing for the respondents,

¶108

G praying for some reasonable time to vacate, submitted that in the nature of the timber and furniture business carried on at the premises, they require some time to find out alternate location/accommodation. Having regard to the entire facts and circumstances of the case, we are of the view that the respondents be given time up to 3 l" March, 20 I 7 which is

¶109

H agreeable to the appellant as well, though reluctantly. The respondents

¶110

615

¶111

DAMODAR LAL v. SOHAN DEVI [KURIAN, J.]

¶112

are directed to file the usual undertaking in this Court and also continue A to pay the use and occupation charges at the rate of Rs. I 0,000/- per month. In the event of any default or violation of the tenns of undertaking, the decree shall be executable forthwith, in addition to the liability for contempt of court.

¶113

The appeal is allowed as above with costs quantified at B Rs.25,000/-.

¶114

Nidhi Jain Appeal allowed.

Damodar Lal v. Sohan Devi and Others

Case brief

What is this about?

What did the court decide?

Damodar Lal v. Sohan Devi and Others

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Subrata Chatioraj versus Union of India & Ors.

C. Chakkaravarty and Ors. versus Tmt. M. Satyavathy, IAS and Ors.

Veerendra Kumar Dubey versus Chief of Army Staff & Ors.

Prem Sagar Manocha versus State (Nct of Delhi)

Sudip Kr. Sen @ Biltu versus State of West Bengal & Ors.

Pardeep Sharma versus Chief Administrator Haryana Urban Dev. Authority & Anr.