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2012 Supreme(Raj) 994
(Rajasthan High Court)
Sohan Devi (Smt.) & Ors. Vs. Damodar Lal & Anr. (Vyas, J.)
HON'BLE GOPAL KRISHAN VYAS, J.
Sohan Devi (Smt.) & Ors.
Versus
Damodar Lal & Anr.
S.B. Civil Second Appeal No. 109 of 2002, decided on 27.09.2012
Manish Shishodia, for Appellants;
Vinay Kothari, for Respondent(s)
Headnote:(a) Rajasthan Premises (Control of Rent and Eviction) Act, 1950, Sec. 13 — Granting decree for eviction on the ground of material alteration ignoring the relevant consideration and proceeding on irrelevant considerations — Held — Decree granted in favour of plaintiff is not in consonance with the basic principles of law as he himself did not prove the ground/issue of major and material alteration of construction and in his place the original owner of the property, holding power of attorney discharged the onus of proof — After purchasing the property, the plaintiff became its owner — Power of attorney holder cannot be treated to be witness to discharge the onus of proof of the issue — Finding is totally perverse and not based upon sound and trustworthy evidence. (Paras 27 to 32)
¼d½ jktLFkku ifjlj ¼fdjk;k ,oa csn[kyh fu;U=.k½ vf/kfu;e] 1950] /kkjk 13 & lqlaxr fopkj dh mis{kk djrs gq, vlaxr fopkj ij dk;Zokgh djrs gq, rkfRod ifjorZu ds vk/kkj ij csn[kyh gsrq fMØh eatwj djuk & vfHkfu/kkZfjr & oknh ds i{k esa eatwj dh xbZ fMØh fof/k ds ewyHkwr fl)kUrksa ds vuq:i ugha D;ksafd mlus Lo;a us fuekZ.k ds izeq[k o rkfRod ifjorZu ds vk/kkj@fook/kd dks lkfcr ugha fd;k vkSj mlds LFkku ij lEifr ds ekSfyd Lokeh] eq[rkjukek /kkjd us lcwr ds Hkkj dk fuogZu fd;k & lEifr dk Ø; djus ds ckn oknh mldk Lokeh cu x;k & eq[rkjukek /kkjd dks fook/kd ds lcwr ds Hkkj dk fuoZgu djus gsrq lk{kh gksuk ugha ekuk tk ldrk &fu"d"kZ iw.kZ:is.k vuqfpr gS vkSj Bksl ,oa fo'oluh; lk{; ij vk/kkfjr ugha gSA
¼in la[;k 27 ls 32½
(b) Rajasthan Premises (Control of Rent and Eviction) Act, 1950, Sec. 13 — Not drawing adverse inference for non-appearance of the plaintiff in witness box — Held — Purposefully the plaintiff did not appear in the witness box to prove the contents of pleadings with regard to raising construction so also he did not produce a copy of the registered sale deed before the court to prove the fact that only plot of land was purchased by him — Trial court relied upon the statement of previous owner of the property — It was under obligation to draw adverse inference for non-appearance of the plaintiff in the witness-box — Plaintiff was the only witness to prove the fact — Committed gross error — Both the judgements and decrees quashed and set aside.
Appeal allowed. (Paras 27 to 32)
¼[k½ jktLFkku ifjlj ¼fdjk;k ,oa csn[kyh fu;U=.k½ vf/kfu;e] 1950] /kkjk 13 & oknh ds lk{kh dV?kjs esa mifLFkr ugha gksus ij izfrdwy vuqeku ugha fudkyuk & vfHkfu/kkZfjr & oknh iz;kstu iw.kZ <ax ls] fuekZ.k dk;Z djus ds lEcU/k esa vfHkokd~ dh vUroZLrq dks lkfcr djus gsrq] lk{kh dV?kjs esa is'k ugha gqvk lkFk gh bl rF; dks lkfcr djus gsrq mlus U;k;ky; ds le{k iaftd`r foØ; foys[k dh izfr Hkh is'k ugha dh fd mlds }kjk dsoy Hkw [k.M gh Ø; fd;k x;k Fkk & fopkj.k U;k;ky; us lEifr ds iwoZorhZ Lokeh ds dFku ij Hkjkslk fd;k & lk{kh dV?kjs esa oknh ds is'k ugha gksus ds dkj.k og izfrdwy vuqeku yxkus gsrq ck/; Fkk & bl rF; dks lkfcr djus gsrq oknh gh ,d ek= lk{kh Fkk & LFkwy =wfV dkfjr dh & nksuksa fu.kZ; ,oa fMØh vfHk[kf.Mr ,oa vikLr fd;sA ¼in la[;k 27 ls 32½
vihy Lohdkj dhA
2. The co-ordinate Bench of this Court while admitting the instant second appeal framed the following substantial questions of law which read as under:
"(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 Damodarlal in the witness box?"
3. Brief facts of the case are that respondent-plaintiff (landlord) filed a suit for eviction against the appellant on the ground of material alternation in the suit premises and on the ground of bona fide necessity. The trial Court after framing five issues commenced trial and while deciding the suit gave finding that the plaintiff has failed to prove the ground of bona fide necessity but, while deciding issue No. 3 with regard to material alteration in the suit property, granted decree of eviction in favour of the respondent-plaintiff landlord.
4. The defendants preferred an appeal before the District Judge, Bhilwara but the same was transferred to the Court of Addl. District Judge No. 1, Bhilwara and the said first appellate Court dismissed the appeal and upheld the finding given by the trial Court for issue with regard to material alteration in the property in question.
5. The respondent-plaintiff preferred suit for eviction against original defendant Bhanwar Lal stating therein that he has purchased the plot from one Rameshwar Lal on 20.8.1972 for his personal necessity; but, at thee time of purchasing the said plot, late Bhanwar Lal and Kailash Chand were tenants, therefore, seller Rameshwar Lal Bhadada gave notice to the tenants and informed that he has sold the property, therefore, now Damodar Lal is owner of the property and he has become landlord of the property.
6. In pursuance of the above notice received by the tenants, they started paying rent to plaintiff Damodar Lal. Thereafter, on 23.4.1974, plaintiff Damodar Lal preferred suit in the Court of Munsiff, Bhilwara to get eviction decree against the tenants on the ground of material alteration upon the premises in question, so also, on the ground of bona fide personal necessity.
7. After issuing notice to the tenants by the Court, the defendants-tenants filed their reply and refuted all the allegations. Thereafter, the trial Court framed seven issues including issue with regard to bona fide necessity of the premises for the landlord, so also, for material alteration upon the premises in question. The trial Court granted decree upon the issue with regard to material alteration while deciding the issue in favour of the plaintiff vide judgment dated 21.12.1989, against which, an appeal was preferred but the first appellate Court rejected the appeal filed by the defendant-appellants vide judgment dated 22.4.2000 passed in appeal No. 20/1999.
8. The co-ordinate Bench of this Court, while admitting the instant appeal, framed aforesaid substantial questions for adjudication.
9. Learned counsel for the appellants submitted that both the questions of law framed by this Court are important question because the judgment and decree passed by both the Courts below are totally contrary to law for the simple reason that in the plaint itself there is no averments or specific allegation with regard to raising any type of cons
