1982 Supreme(MP) 107

M. D. Bhatt, J.
Ramjidas v. Panchamsingh.
S. A. No. 87 of 1971 (G); Decided on 14-2-1982.

Headnote:(1) Accommodation Control Act, 1961 (MP) -- S. 12 (1) (O) -- suit for eviction under --when liable to be dismissed -- alleged encroached portion found to be a part of the tenanted premises -- suit liable to he dismissed.

        (2) Civil P.C., 1908 -- S. 100 -- finding whether certain area is included in the tenanted premises or not -- is a finding of fact -- such finding on due appreciation of evidence, is binding in second appeal.

        Relationship of landlord and tenant is not in dispute. It is equally not disputed that the particular room, shown by red lines in the plaint map, was in occupation of the defendant as plaintiffs tenant. The sole question in dispute is whether the Sahan (Open Court yard), which is adjoining the defendants room, is or is not included in the tenanted premises. According to plaintiff, the Sahan was not part of the leased out premises and that it was only the room which had been let out to the defendant. But according to the respondent-defendant, apart from the room, which is, admittedly, in his occupation as tenant, the Saban was equally included in the tenanted premises. The plaintiff had alleged in his suit that there was a door on the eastern side of (he defendants room opening towards the Sahan and the same was closed by him (the plaintiff) be placing stone slabs against the said door, and thus, the passage to the Sahan from the defendants room was blocked. But the defendant, it was alleged, had recently removed the said stone slabs and had unauthorisedly occupied the whole of the Sahan and brought it in his own use without the plaintiff landlords permission. The defendant tenant had contended that the Sahan was already included in the tenanted premises and that the door leading to the Sahan had never been blocked by the plaintiff by keeping any stone slabs. The trial Court decreed the plaintiffs claim for eviction under section 12 (1) (o) of the Act. The lower appellate Court, however. set aside the same and dismissed the plaintiffs claim for eviction on the said ground on the premise that the Sahan was included in the premises leased out to the defendant. Hence, now the plaintiffs present appeal.

        Held : 1 have considered the arguments of both sides. It may, at first, be stated that the lower appellate Court in paras 18 to 20 of its judgment has already discussed the evidence on both sides in the matter of eviction on the ground under section 12 (1) (a) of the Act, and has arrived at the finding that the Sahan was included in the tenanted premises leased out to the defendant. Such a finding on due appreciation of evidence after application of mind, which. of course, is not perverse to any extent, is not open for interference in the present second appeal, in face of the decision of the Supreme Court in Deity Pattabhima Swami v. S. Hanvmayya and others (AIR 1959 SC 57). Any was as it is, even after re-appraisal and re-assessment of the whole oral evidence on record, there does not appear to be any scope for interference with the lower appellate Courts finding, which is found to be just and proper. AIR 1959 SC 57 followed. Appeal dismissed.