Rajasthan High Court - JodhpurRaj Kumar vs Smt.Shanta Devi & Ors on 6 April, 2012S.B. Civil Second Appeal No. 358/2007
                                         Raj Kumar Vs. Smt.Shanta Devi & Ors.



    IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      AT JODHPUR

                        JUDGMENT

                          Raj Kumar
                           Versus
                    Smt.Shanta Devi & Ors.


           S.B. CIVIL SECOND APPEAL NO.358/2007


                Date of Judgment : 06.04.2012

                        PRESENT
       HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI

Dr.Sachin Acharya, for the appellant
Mr.Suresh Shrimali    )
Mr.Mahesh Joshi       ), for the respondents.

BY THE COURTThis civil second appeal underSection 100of the

C.P.C. has been preferred by the appellant-defendant being

aggrieved by the judgment & decree dated 5.7.2007 passed by

learned Additional District Judge No.2, Bhilwara in Civil Appeal

No.3/2006,    whereby    the   learned     lower      appellate      court

dismissed the appeal filed by the appellant-defendant and

affirmed the judgment & decree dated 22.11.2005 passed by

learned Additional Civil Judge (Junior Division) First Class

No.1, Bhilwara in Civil Original Case No.427/1992 whereby the

trial court decreed the suit of the respondents-plaintiffs.Page 1 of 11S.B. Civil Second Appeal No. 358/2007Raj Kumar Vs. Smt.Shanta Devi & Ors.The brief facts of the case are that the respondent-

plaintiff Smt.Shanta Devi filed a suit for eviction against the

appellant and respondent-Tek Chand before the court of Civil

Judge, Bhilwara, which was later on transferred to the court of

Additional Civil Judge (Junior Division) First Class No.1,

Bhilwara. It was averred in the suit that three shops, details

whereof were mentioned in para 1 of the plaint are situated at

Bhopalganj, Bhilwara in Rajiv Gandhi Market. The shops were

given on rent to Tek Chand at a sum of Rs.201/- per month

w.e.f. 1.9.1979. It was claimed that the tenant defaulted in

making payment and therefore, a decree of eviction be

passed. Other grounds including that of non-user, personal &

bonafide necessity etc. were also taken. It was also claimed in

the suit that the tenant has rented out the middle shop to the

present appellant-Raj Kumar without any authority and has

created sub-tenancy.The respondent-defendant No.1 filed written statement

denying the plaint averments. The appellant-defendant No.2

also contested the suit and filed separate written statement,

wherein it was stated that he is not sub-tenant of defendant

No.1- Tek Chand nor the shop in which he is doing his

business belongs to Smt. Shanta Devi. It was also averred by

the appellant-defendant that he is carrying his business in thePage 2 of 11S.B. Civil Second Appeal No. 358/2007Raj Kumar Vs. Smt.Shanta Devi & Ors.shop in question since 1977 onwards, initially along with his

grandfather and thereafter, on his own and further that the

shop belongs to him.During the pendency of the suit, an application

under Order 22 Rule 10 read withOrder 1 Rule 10 CPCcame

to be filed on behalf of Om Prakash on 14.7.2000, in which,

he claimed that the entire suit property is purchased by him

vide registered sale-deed dated 29.4.2000 and therefore, he

be transposed as plaintiff. The learned trial court while

accepting   the   application   vide      order   dated      16.9.2001

transposed Om Prakash as plaintiff No.2.On the basis of the pleadings of the parties, the

learned trial court framed eight issues including relief and

recorded the evidence of both the parties.               The plaintiff

examined P.W.1 Bal Kishan, PW-2 Bhanwar Lal and PW-3 Om

Prakash and in rebuttal, the defendants examined D.W.1 Raj

Kumar, DW-2 Kanhaiya Lal and DW-3 Rameshwar Lal.After hearing the arguments of the parties, the

learned trial court decreed the suit of the respondents-

plaintiffs vide the impugned judgment & decree dated

22.11.2005. Being aggrieved by the same, the appellant-

defendant preferred an appeal before the learned lower

appellate court. The said appeal has been dismissed vide thePage 3 of 11S.B. Civil Second Appeal No. 358/2007Raj Kumar Vs. Smt.Shanta Devi & Ors.impugned judgment & decree dated 5.7.2007.Hence,      being     aggrieved        by     the      impugned

judgments and decrees passed by the courts below, the

appellant-defendant has preferred this civil second appeal.The learned counsel for the appellant-defendant

contended that the judgment and decree passed by both the

courts below are against the law and also against the facts

available on record, hence liable to be quashed and set aside.The learned counsel for the appellant-defendant

further contended that learned trial court as well as the first

appellate court erred in deciding issue No.7 against the

appellant inasmuch as it is admitted fact that the present

appellant is in possession of the suit property since long time,

that too, in the knowledge of the respondent-landlord and he

is in adverse possession of the suit property. Therefore the

finding of the learned trial court as well as the first appellate

court on issue no.7 is perverse, illegal and against the material

available on record.The learned counsel for the appellant further

contended that Shanta Devi herself has not been examined

and his Power of Attorney Holder, PW-1 Bal Kishan Baheti in

his cross-examination admitted that he does not know the

fact whether Raj Kumar is in possession of the suit propertyPage 4 of 11S.B. Civil Second Appeal No. 358/2007Raj Kumar Vs. Smt.Shanta Devi & Ors.since 1979 as an owner? PW-2 Bhanwar Lal Nuwal has also

stated in his cross-examination in the same way. Therefore,

the fact of sub-tenancy are not within the specific knowledge

of PW-1 Bal Kishan, PW-2 Bhanwar Lal and PW-3 Om Prakash.

In the absence of specific knowledge of sub-tenancy, the

learned trial court as well as the first appellate court decreed

the suit on the ground of subletting, which is also against the

material available on record.The learned counsel for the appellant further

contended that DW-1 Raj Kumar, DW-2 Kanhaiya Lal, DW-3

Rameshwar Lal specifically stated in their evidence that earlier

DW-2 Kanhaiya Lal used to sit with his father in the suit

property and later on, DW-1 Raj Kumar also used to sit with

his grand-father in the suit property and therefore, adverse

possession on the suit property is well proved and nothing has

come in the cross-examination of all the three witnesses

produced by the appellant-defendant Raj Kumar.The learned counsel for the appellant strongly

contended that this decree has been obtained by fraud and

collusion   of defendant- Tek Chand and plaintiff-landlord

Shanta Devi because Tek Chand did not appear in the

evidence.The learned counsel for the appellant-defendantPage 5 of 11S.B. Civil Second Appeal No. 358/2007Raj Kumar Vs. Smt.Shanta Devi & Ors.has proposed the following substantial questions of law in the

memo of appeal :-"(i)    Whether the Courts below have misread and
            misinterpreted the document, Ex.3 and wrongly
            held that the plaintiff and appellant were
            having landlord-tenant relationships?(ii)    Whether both the courts below have erred in
            law in considering that the appellant is bound
            by the admission of Tek Chand particularly
            when the appellant has specifically pleaded a
            case of adverse possession?(iii)   Whether the courts below have committed
            material irregularity in passing and affirming a
            decree based on deceitful tactics by two
            parties?(iv)    Whether the learned Trial court erred in law in
            not deciding issue no.7 in its correct
            perspective and whether the findings on issue
            No.7 are not based on correct interpretation of
            the evidence leading to passing of the
            impugned judgment and decree?(v)     Whether the Courts below have committed
            serious illegality in misreading the evidence
            adduced on behalf of appellant and have
            further erred in law in misreading evidence of
            DW-1?(vi)    Whether judgment and decree as passed by the
            learned trial court is liable to be set-aside on
            the ground of non-application of mind by the
            learned trial court?(vii)   Whether the judgment and decree passed by
            the Learned Trial Court and affirmed by the
            Learned Appellate Court suffers from serious
            illegality on the ground of misreading and
            misinterpreting the evidence of the plaintiff?Page 6 of 11S.B. Civil Second Appeal No. 358/2007Raj Kumar Vs. Smt.Shanta Devi & Ors.Per contra, the learned counsel for the respondents

vehemently defended the judgments of the learned trial court

as well as of first appellate court. The learned counsel for the

respondents contended that issue No.7 is not regarding the

adverse possession. Issue No.7 framed by the learned trial

court is as under:-"7.   आय व द त त न        क न म स एक   क न पर
            पतत      स. 2 वपछल 17-18 र स क ब ज ह"कर
             ह# ससयत म सलक ह#?"From a perusal of the aforesaid issue, it is clear

that issue No.7 is regarding the fact whether the suit property

vest to Raj Kumar as an owner?I have considered the rival contentions raised by

both the parties and also perused the judgments passed by

the learned trial court as well as of the first appellate court

and the statements of the witnesses produced by both the

parties.So far as the contention that decree has been

obtained by fraud and collusion is concerned, from the

pleadings of the parties and evidence, it cannot be said that

the decree has been obtained by collusion because Tek Chand

specifically denied the averments of the plaint and further

deposited the rent provisionally determined by the learned

trial court from time to time and also the counsel for thePage 7 of 11S.B. Civil Second Appeal No. 358/2007Raj Kumar Vs. Smt.Shanta Devi & Ors.respondent-Tek Chand cross-examined the witnesses at

length. The conduct of the respondent- Tek Chand cannot be

said to be of such a nature, which shows that there was

collusion between Shanta Devi, Om Prakash and Tek Chand.So far as the ownership is concerned, Shanta Devi

sold the suit property to Om Prakash. She after purchasing the

suit   property    from     Municipal       Council,     Bhilwara       had

constructed the building. It is admitted fact that out of the

three shops, two shops have been vacated by Tek Chand and

possession has been handed over to Om Prakash and the suit

property, which is in between the other two shops, is in

possession of the present appellant and the roof of all the

three shops is in possession of Om Prakash. That goes to

show that all the three shops were rented to Tek Chand by

Shanta   Devi     and   subsequently,       Tek   Chand       came      into

possession of the suit property. In the absence of any

documents or title, it cannot be said that the property in

question vests in Tek Chand. Therefore, the arguments

advanced   by     counsel   for   the       appellant    regarding       the

ownership of the property does not carry any force.Now, turning to the point of the question of

adverse possession, from the evidence of the appellant as well

as DW-2 Kanhaiya Lal and DW-2 Rameshwar Lal, it cannot bePage 8 of 11S.B. Civil Second Appeal No. 358/2007Raj Kumar Vs. Smt.Shanta Devi & Ors.said that Raj Kumar has got the adverse possession over the

suit property. The respondent-landlord proved the execution

of rent-note Exhibit-3, which bears the signatures of Tek

Chand and in rent-note, three shops have been mentioned to

be rented to Tek Chand. The document Exhibit-3 was

executed on 1st April, 1979. The execution of Exhibit-3 itself

shows that all the three shops were given on rent to the

respondent-Tek Chand and the evidence of DW-1 Raj Kumar,

DW-2 Kanhaiya Lal, DW-3 Rameshwar Lal does not inspire any

faith in view of the execution of document Exhibit-3 by Tek

Chand. During the course of arguments, the learned Counsel

for the appellant drew my attention to the fact that the

document Exhibit-3 does not bear the name of tenant. But at

the bottom of the rent-note, there are signatures of Tek

Chand at two places. Thus, the execution of rent-note is

proved beyond doubt.The learned trial court as well the first appellate

court considered the documentary as well as oral evidence at

length   produced   by   both    the      parties   and      after    due

consideration of evidence, decreed the suit in favour of the

respondent-Om Prakash and I see no reason to have a

different view from the trial court as well as from the first

appellate court. The findings recorded by learned trial court asPage 9 of 11S.B. Civil Second Appeal No. 358/2007Raj Kumar Vs. Smt.Shanta Devi & Ors.well the first appellate court cannot be said to be perverse,

illegal or against the material available on record. On the

contrary, the findings of learned trial court as well first

appellate court is based on sound reasonings and the same

are given after appreciating the evidence produced by both the

parties. No substantial question of law as proposed by the

learned counsel for the appellant is involved in this appeal.In view of the aforesaid, I find no illegality, infirmity or

irregularity in the findings arrived at by the learned trial court

as affirmed by the learned first appellate court.               Both the

courts below have given concurrent finding of fact. The

impugned judgments passed by the courts below do not call

for any interference at the second appellate stage.Consequently, this civil second appeal being bereft

of any merit is dismissed at admission stage. No order as to

costs.At this stage, the learned counsel for the appellant

contended that appellant is carrying on his business in the suit

premises, therefore, sufficient time may be granted to vacate

the suit premises. The learned counsel for the respondent-

landlord submitted that there is an order of status quo against

the eviction by this Court since 2007, and thus, the appellant

has already availed the sufficient time. Therefore, he may notPage 10 of 11S.B. Civil Second Appeal No. 358/2007Raj Kumar Vs. Smt.Shanta Devi & Ors.be granted further time to vacate the suit premises.Looking to the entire facts and circumstances of

     the case and also the fact that appellant is carrying on

     business since long time, one year time is granted to the

     appellant to vacate the suit premises from today. The

     appellant shall file an undertaking before the trial court within

     two months from today that he will vacate the suit premises

     within a period of one year from today. Failing to submit

     undertaking, the respondents-plaintiffs shall be free to get it

     vacated through execution proceedings.[KAILASH CHANDRA JOSHI],J.NKPage 11 of 11