Parasnath vs Somnath And Anr

The substantial questions of law involved, formulated and to be answered in this second appeal preferred by the plaintiff are as under:Â​

“1. Whether the two Courts below were justified in deciding the suit against the plaintiff in spite of the admission of the defendant No.1 the lease of

the said shop given in the year 1992 was in favour of the plaintiff ?

Whether the two Courts below have committed an error of law and not accepting Ex.PÂ4, the consent letter to be basis on which the plaintiff was

entitled for the vacant possession of the suit premises ?â€​

[For the sake of convenience, parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court].

The suit plot in which the plaintiff has constructed the shop situated at village Bhatgaon within the limits of Nagar Panchayat was held by the

plaintiff on lease vide Ex.PÂ1 for a period of three years. The plaintiff and defendant No.1 both are brothers. It is the case of the plaintiff that since

his brother defendant No.1 was unemployed he allowed him to run his shop as licensee and lease has been renewed for a further period of three

years, but possession of defendant No.1 is unauthorized. Despite service of notice, he has not vacated the suit shop, therefore, the plaintiff filed a suit

stating that he be declared leaseÂ​holder and the defendants be directed to hand over the peaceful possession to him.

The defendants filed their written statement and denied the averments made in the plaint stating inter alia that defendant No.1 himself has

constructed the suit shop and as such, the plaintiff is not entitled for declaration of title and possession.

The trial Court upon evaluation and after appreciation of oral and documentary evidence available on record, by its judgment and decree dated

18.1.2005, dismissed the suit, which has been affirmed by the first appellate Court. Questioning the judgment and decree of the first appellate Court,

this second appeal under Section 100 of the CPC has been filed by the appellant/plaintiff, in which substantial questions of law have been formulated,

which have been setÂ​out in the opening paragraph of this judgment.

Mr.Rupesh Shrivastava, learned counsel for the appellant/plaintiff, would submit that concurrent finding recorded by two Courts below that the

plaintiff is not entitled for possession is perverse finding despite holding that the plaintiff is lessee of the suit shop, as such, finding recorded by two

Courts below deserves to be set aside.

On the other hand, Mr.Pawan Kesharwani, learned counsel for the respondents/defendants, would support the impugned judgment and decree.

I have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the records with utmost

circumspection.

Admittedly, the suit land was owned by Nagar Panchayat, Bhatgaon and lease was granted in favour of the plaintiff vide Ex.PÂ7 for a period of

three years and it was further extended for a further period of three years. There is nothing on record to demonstrate that after three years on

3.2.2002 lease was further extended in favour of the plaintiff. It appears that defendant No.1 has allowed to construct the suit shop on the plot alloted

to the plaintiff on lease by Nagar Panchayat, Bhatgaon and dispute has occurred of that suit shop so constructed, but the fact remains that the plaintiff

has claimed title of the suit shop which cannot be granted to him as lease was granted to him for a period of three years and that has been further

extended up to 2.2.2002 and as per definition of Section 105 of the Transfer of Property Act, 1882, a lease of immoveable property is a transfer of a

right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a

share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who

accepts the transfer on such terms, as such, lease was granted in favour of the plaintiff firstly for a period of three years and it was further extended

for a further period of three years and thereafter nothing has been brought on record to show that lease was further extended, as such, both the

Courts below were justified in holding that the plaintiff is not titleÂholder of the suit shop and even in absence of extension of period of lease, he

cannot be declared lessee of the suit land/shop that too in absence of Nagar Panchayat, Bhatgaon as party defendant in the suit. I do not find any

merit in this second appeal. The substantial questions of law are answered accordingly.

Consequently, the second appeal being devoid of merit is liable to be and is hereby dismissed leaving the parties to bear their own cost(s).

Decree be drawnÂ​up accordingly.