Bhupendra Kumar vs Nathdwara Temple Board

Pratap Krishna Lohra, J—Unsuccessful defendant is the appellant in this second appeal under Section 100 CPC preferred against the impugned judgment and decree dated 29.07.2010, passed by Addl. District Judge, Nathdwara (learned lower appellate Court), whereby the learned lower appellate Court has affirmed the judgment and decree dated 29.11.2006, passed by learned Civil Judge (Sr. Div.) Nathdwara (learned trial Court).

Succinctly stated, the facts are that on 17.05.1997 respondent-plaintiff Shree Nathdwara Mandir Mandal instituted a suit in the learned trial Court for possession and recovery of rent against appellant-defendant Bhupendra Kumar with the averments that the land of Nathuwas Petrol Pump measuring 1 bigha 2 biswa of its ownership and possession was taken by defendant on monthly rent of Rs. 100 for 11 months on 01.10.1986 and after completion of 11 months defendant became a tenant but as the Temple Board was not interested in continuing the tenancy, defendant''s tenancy was terminated on 30.11.1996 by notice dated 28.10.1996. It was further averred that even after termination of tenancy, defendant neither handed over possession of tenanted plot to the plaintiff nor made payment of due rent as such the plaintiff is entitled to possession of the plot and outstanding rent amounting to Rs. 2,000/- for 20 months from 01.04.1995 to 30.11.1996. In the plaint, a sum of Rs. 550 was also claimed as damages @ Rs. 100 per month for use and occupation of the plot for the period from 30.11.1996 till filing of the suit. Accordingly, prayer was made for decreeing the suit for eviction of defendant, possession of plaintiff and for payment of due rent, costs etc.

Resisting the suit, defendant filed written statement denying the averments of plaint and stated that the disputed piece of land is situated in Khasra No. 461 of village Nathuwas on which petrol pump existed since 1950 and was earlier on rent with one Ram Chandra, Proprietor of Lavati Brothers, which was taken by him on rent in the year 1986 from the Temple Board. According to him, previously property vested in Thikana Nathdwara and after constitution of Temple Board, Nathdwara, it vested in it. It was stated by defendant that he came to know about vesting of property in State Government by virtue of Rajasthan Land Reforms and Resumption of Jagirs Act 1952 and therefore since 1990 he has paid lease money to the State Government from time to time as per demand. An objection was raised that the disputed land is agricultural land, which is recorded in the name of State Government in revenue records as its Khatedar, as such only the Revenue Court has the jurisdiction to entertain suit. It was also contended that the plaintiff has no right or authority to terminate tenancy after coming into force of the Resumption of Jagirs Act 1952 as the disputed land thereafter vested in State Govt. and after State becoming owner of the land in question, plaintiff has no authority to terminate tenancy. It was pointed out that as the land in dispute is claimed by Temple Board as well as State as its owner, he has filed an interpleader suit under Section 88 CPC. Defendant prayed for staying proceedings in the suit filed by plaintiff Temple Board and deciding the suit in light of interpleader suit.

On the above pleadings five issues were framed by the learned trial Court for determination. On plaintiff''s side, witnesses P.W. 1 Sajjan Singh, PW2 Jamna Das, PW3 Amba Lal Paliwal were examined and Exs. A1 to A3 were marked. Defendant-appellant Bhupendra Kumar examined himself as D.W. 1 and one witness Sitaram Kumar was examined as D.W. 2. The documents marked on defendant''s side were Ex. D1 to D17.

The learned trial Court after examining the evidence tendered by rival parties and the documents available on record, decided crucial Issue No. 1 in favour of plaintiff Temple Board holding it entitled to get the defendant-appellant evicted from the land in question and obtain its possession and while deciding issue No. 2 the learned trial Court arrived at the conclusion that the relationship of landlord tenant exists between plaintiff and defendant in view of the appeal being pending before the Jagir Commissioner and held the plaintiff Temple Board entitled to get arrears of rent. Issue No. 3 relating to damages was also decided in favour of plaintiff and against the defendant holding the plaintiff Temple Board entitled to get damages @ 100 per month from the date of filing of the suit. Issue No. 4 relating to vesting of the land in Government, in respect of which burden to prove was on defendant-appellant, was decided in favour of defendant and against plaintiff Temple Board in light of the evidence of D.W. 2 Sitaram Patwari and documents on record showing pendency of matter relating to ownership of the dispute land before the Jagir Commissioner concerning the land in dispute. Issue No. 5 pertaining to grant of stay on account of interpleader, suit itself having been dismissed was of no avail and decided accordingly. The learned trial court ultimately decreed the suit directing the defendant-appellant to handover actual and physical possession of the land in question to the plaintiff Temple Board and also to pay arrears of rent as well as damages @ Rs. 100 per month for use and occupation of the plot from the date of filing of the suit.

Against the judgment and decree of the learned trial Court as well as dismissal of interpleader suit, appellant-defendant preferred first appeal before the learned lower appellate Court which re-examined the matter threadbare and scrutinized the entire evidence de novo. The learned lower appellate Court arrived at the conclusion that the learned trial Court has not committed any error of law in passing the judgment and decree impugned. The appellate Court emphasized on the settled principle of law that for a landlord it is not necessary to be landowner but it is enough that relationship of landlord and tenant exists. The assertion of the defendant-appellant being lessee was rejected by the learned lower appellate Court in absence of there being concrete proof about his being tenant of the Government. The challans produced on record by the defendant tenant for making payment of lease rent also did not show regular payment of lease rent and the learned lower appellate Court arrived at the conclusion that the amounts under challans were paid without any demand. It was also observed that the State Government never raised any claim against the defendant and only the defendant has pointed out that the owner of land is someone else whereas he himself had taken the premises on rent from Temple Board and agreed to pay rent. Eventually, the learned lower appellate Court declined to interfere with the judgment and decree of the learned trial Court by dismissing the appeal, which has led to the filing of present second appeal by appellant-defendant.

I have heard learned counsel for the parties, perused the judgments rendered by both the Courts below and scanned the entire record.

The original suit was filed by appellant Temple Board, Nathdwara inter-alia for eviction and arrears of rent against appellant-defendant who had taken the land in question on rent from respondent Temple Board but despite termination of tenancy did not vacate the land and handed over its possession. The defendant-tenant defaulted in payment of rent and on filing the suit by Temple Board came up with the case that the land now vests in Government and he has stepped in the shoes of lessee of the Government. The interpleader suit having been rejected and the suit filed by Temple Board decreed and later on affirmed by lower appellate Court, the appellant is not entitled to any relief from this Court. The documents sought to be produced now showing him to be lessee by filing an application, at the second appellate stage, under Order 41 Rule 27 for taking on record the recovery notices issued by Tehsildar demanding lease money and the part of audit report in respect of non-renewal of lease of the petrol pump is of no avail in view of settled position of law propounded by Hon''ble Apex Court in N. Kamalam (Dead) and Another Vs. Ayyasamy and Another, (2001) 6 AD 37 : AIR 2001 SC 2802 : (2001) 6 JT 219 : (2001) 5 SCALE 65 : (2001) 7 SCC 503 : (2001) AIRSCW 2907 : (2001) 5 Supreme 689 that provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the Court of appeal as it does not authorize any lacunae or gaps in evidence to be filled up. Furthermore, the matter relating to ownership of the land in dispute is sub-judice before the Jagir Commissioner and the ownership of State on the land has not attained finality. As such, the application merits dismissal and is hereby rejected.

The trial Court as well as the lower appellate Court took much pain to go through the pleadings with reference to the entire realm of evidence and consistently held that the appellant-defendant has miserably failed to prove his case. The lower appellate Court clearly highlighted the factual aspect that even though the plaintiff claims himself to be a lessee, in light of the evidence of Patwari D.W. 2 Sitaram and documents on record showing pendency of matter relating to ownership of the disputed land before the Jagir Commissioner but for its relevance in relation to lis involved. The lower appellate Court in the facts and circumstances of the case finally concluded that plaintiff Temple Board has established its title over the land in dispute and the defendant has not vacated the premise despite termination of tenancy and has also committed default in payment of rent. In a catena of decisions, Supreme Court has held that as general rule, where the findings of the Courts below is based on evidence and the Courts below have recorded concurrent findings of fact, High Court will not normally interfere with the concurrent findings of the Courts below exercising jurisdiction under Section 100 CPC.

On perusal of impugned judgments, it is amply clear that matter has been thrashed out threadbare by both the Courts below and recorded a categorical finding against the appellant. Finding of fact recorded by both the Courts below is based on sound appreciation of evidence and the same cannot be categorized as infirm or perverse from any stretch of imagination. Furthermore, it is settled position of law that jurisdiction under Section 100 CPC is to be exercised with great care and circumspection and normally this Court is not obliged to re-appreciate the evidence available on record for arriving at a different conclusion.

On a close scrutiny of the impugned judgment, in my opinion, no substantial question of law is involved in this second appeal requiring adjudication in view of the settled law that it is not within the domain of the High Court to investigate the grounds, on which the findings were arrived at by the last Court of fact, i.e. the first appellate Court if in the given set of circumstances two inferences of fact are possible, one subscribed by the first appellate Court is not to be interfered by the High Court in second appeal. Adopting any other approach in such a situation is not permissible. The High Court, however, can interfere where it is found that the conclusions drawn by the first appellate Court were erroneous on account of being contrary to the mandatory provisions of law or trite legal position settled by authoritative pronouncements of Hon''ble Apex Court, or based on inadmissible evidence, or arrived at by ignoring material evidence.

The phrase "substantial question of law", as occurring in the amended Section 100 of the Code of Civil Procedure is not defined in the Code. The word substantial, as qualifying "question of law", means-of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something purely technical, of no substance, or consequence, or merely academic. When a question of law is fairly arguable, where there is room for difference of opinion on it, or where the Court thinks it necessary to deal with that question at some length and discuss alternative views, then obviously the question may be construed as a substantial question of law.

Thus, in totality, jurisdiction conferred on this Court under Section 100 CPC is to be exercised sparingly and second appeal is to be entertained only when there is a substantial question of law involved. After examining the matter thoroughly, I am unable to find any substantial question of law in this appeal and questions proposed are also not satisfying the requisite parameters discussed hereinabove. Therefore, it is not a fit case to exercise second appellate jurisdiction.

In view of above, I am not persuaded to interfere with the impugned judgment passed by learned lower appellate Court.

Consequently, appeal fails and same is, hereby, dismissed. No costs.