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SUPREME COURT OF INDIA
T.S. THAKUR, CJI., KURIAN JOSEPH, J.
DAMODAR LAL – APPELLANT
VERSUS
SOHAN DEVI AND OTHERS – RESPONDENTS
CIVIL APPEAL NO. 231 OF 2015
Decided on : 05-01-2016
(2007) 12 SCC 190 ; (2010) 15 SCC 530 – Relied.
(B) Civil Procedure Code, 1908 – Section 100 – Second appeal – Substantial question of law – Even if finding of fact is wrong that by itself will not constitute a question of law – Wrong finding should stem out on complete misreading of evidence or it should be based only on conjectures and surmises – Safest approach on perversity is classic approach on reasonable man’s inference on facts – To him, if conclusion on facts in evidence made by court below is possible, there is no perversity – If not, finding is perverse – Inadequacy of evidence or a different reading of evidence is not perversity. (Para 13)
(2001) 4 SCC 262 ; (2013) 6 SCC 602 – Relied.
Facts of Case:
Facts unfold the plight of a poor landlord languishing in courts for over forty years. Case gets sadder when we note that appellant had been successful both in trial court and first appellate court and saddest part is that High Court in second appeal, went against him on a pure question of fact. High Court allowed second appeal and suit for eviction was dismissed.
Findings of Court:
Approach made by High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. Strained effort made by High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law.
Respondents are directed to file usual undertaking in this Court and also continue to pay use and occupation charges at rate of Rs.10,000/- per month. In event of any default or violation of terms of undertaking, decree shall be executable forthwith, in addition to liability for contempt of court. Appeal is allowed with costs quantified at Rs.25,000/-.
Result – Appeal allowed with costs.
Judgment :
Kurian, J.
1. The facts unfold the plight of a poor landlord languishing in courts for over fourty years. The case gets sadder when we note that appellant had been successful both in the trial court and the first appellate court and the saddest part is that the High Court in second appeal, went against him on a pure question of fact!
2. Issue number-3 framed in Civil Regular Suit No. 191 of 1974 for eviction on the ground of unauthorised construction/material alteration, decided on 21.12.1989 in the Court of Munsiff, Bhilwara, Rajasthan, reads as follows:-
“Whether the tenant has carried out permanent construction on the plot thereby causing a permanent change in the identity of the plot against the terms of the rent agreement?”
3. Having analysed and appreciated the evidence of PWs-1 and 2 and also DWs-1 to 4, the trial court came to the following finding on the issue:-
“Thus all the witnesses of both 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.”
4. Dissatisfied, the tenants took up the matter in appeal before the Court of the Additional District Judge-I, Bhilwara, Rajasthan in Civil Appeal No. 20 of 1999 (originally presented before the District Judge, Bhilwara, Rajasthan on 19.01.1990 and since transferred to the Additional District Judge). In the judgment dated 22.09.2000, the first appellate court, after re-appreciating the whole evidence, came to the conclusion that:-
“... In my opinion the evidence that had been presented before the subordinate court, the subordinate court has not made any mistake in coming to the conclusion that the tenant has made structural changes in the rented accommodation. The appellant tenant has not been able to present any evidence to show that the consent of the land lord had been taken before making structural changes. ...”
5. On such findings, the appeal was dismissed. Thus, there are two findings of fact against the tenants/respondents.
6. The tenants pursued the matter in Second Appeal No. 109 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:-
“(1) Whether on 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.
(2) Whether on the facts of this case, the learned courts below have erred in not drawing adverse inference for non-appearance of the plaintiff Damodar Lal in the witness box?”
7. The High Court, in the second appeal, came to the conclusion that the concurrent finding on structural change, in the absence of the 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 witness box, and in such circumstances, the finding on material alteration is totally perverse. We feel it necessary to quote the relevant portion from the impugned judgment:-
“... 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 P.W.-1 Rameshwar Lal who was the previous owner of the property from whom the plaintiff purchased the said property.
Therefore, the finding arrived at by the trial court on the issue of material alteration is totally perverse and not based upon sound and trustworthy evidence. The trial court has committed gross error while not draw
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