The court upheld the lower courts' findings on damages caused to the property by the tenant, based on the Commissioner's report and oral evidence, and dismissed the appeal under section 100 CPC.

PRAKASH TATIA, J.

( 1 ) HEARD learned counsel for the appellants.

( 2 ) THE appellants are aggrieved against the concurrent findings recorded by the two courts below in the judgment and decree passed by the trial Court dated 9. 3. 2004 and judgment and decree of the appellate Court dated 27. 5. 2005.

( 3 ) BRIEF facts of the case are that plaintiff filed the suit for recovery of damages of Rs. 35,400 on allegation that defendants-appellants were tenant in the plaintiff-respondents house and they were evicted from the suit house in dispute in execution of the decree passed on 28th Oct. , 1996 in Civil Original suit No. 681/94 and against which, appeal and second appeal were also dismissed. In execution proceedings the plaintiff submitted an application for appointment of Commissioner, upon which, the executing Court ordered to record the general condition of the property while delivering possession of the house to the plaintiff. The report about the condition of the house was submitted before the executing court and it was found that defendants-tenants encroached upon some portion of the rented premises by allowing his brother defendant No. 2 to include some of the land in the property of the tenants brother defendant No. 4. The plaintiff found that the property was seriously damaged. In the backdrop of these facts, the plaintiff filed the suit for possession of the encroached property as well as for damages. The trial Court decreed the suit of the plaintiff for possession of the encroached land and awarded damages of Rs. 35,000 as claimed by the plaintiff alongwith @ 12% per annum by judgment and decree dated 9th march, 2004.

( 4 ) THE defendants preferred appeal, which was partly allowed by the appellate Court by judgment and decree dated 27th May, 2005 and the amount of damages has been reduced from Rs. 35,000 to Rs. 25,000 and rest of the decree was upheld. Hence, this second appeal by the defendant.

( 5 ) ACCORDING to learned counsel for the appellants, the two Courts below committed serious illegality in awarding the compensation because the plaintiff failed to prove the electricity connection in the house and also failed to prove any damage caused to the property by the defendants-appellants. According to learned counsel for the appellants, the property was let out in the year 1974 and it was never repaired by the landlord and it is also submitted that the report submitted about the condition of the property cannot prove any damage caused by the defendants. It is also submitted that the defendants never encroached upon the land of the plaintiff.

( 6 ) I considered the submissions of learned counsel for the appellants and perused the reasons given by the two Courts below. It is clear that the two Courts below carefully considered all the evidence and recorded specific findings about the damage has been caused to the property by the tenant. It will be worthwhile to mention here that the Court officer, the Commissioner submitted report and the facts mentioned in that report cannot be disputed. In view of the above, the facts mentioned in the commissioners report, which was considered by the two Courts below alongwith the oral evidence, I do not find that the Courts below have committed any error of law or fact so as to call for interference by this Court under section 100 CPC. No substantial questions of law are involved in this appeal. Hence, the appeal of the appellants is dismissed. Appeal dismissed.