SHARMA, J. - (1.) APPLICATION under Order 22 Rule 3 CPC has been filed by the heirs of appellant Shravan Kumar with the averments that Shravan Kumar died on October 10, 2004. Respondents have opposed the application on the ground that the alleged legal heirs were not utilizing the suit property with the deceased at the time of his death since the deceased himself was not using it. Controverting the reply of the respondents, Smt. Leelu the daughter of deceased filed affidavit to show that all the heirs were residing with the deceased at the time of his death. Having heard learned counsel for the parties. I allow the application. The legal representatives of appellant are brought on record. Amended cause title has already been filed.
(2.) I have heard learned counsel for the parties on merits also. This is tenant's second appeal, against the concurrent findings arrived at by two courts below. It appears that issues No. 9, 10 & 11 regarding reasonable necessity and comparative hardship, which were decided against the tenant, were not pressed by the landlord before the first appellate court, therefore, the learned first appellate proceeded to dispose of the issues No. 5, 7 & 8. Issue No. 5, which related to change in using the tenanted premises, was decided by the learned trial court against the tenant. Learned first appellate court after considering ocular and documentary evidence observed that the tenanted premises was let out to tenant for the purpose of residence but instead of using it for residential purpose, the tenant started storing fruits, vegetables and shoes in the said premises. The tenant in his deposition admitted that Sign Boards shown in the photographs Ex. 8 and Ex. 9 were installed by him outside the tenanted premises. The decision of issue No. 5 was rendered by the learned appellate Court in favour of the landlord. Issues No. 7 and 8 were also decided by the appellate court in favour of landlord and on considering the statements of witnesses and documents Ex. 1, Ex. 2, Ex. 3, Ex. 4, Ex. 5, Ex. 6 and Ex. 7 it was held that the tenant had constructed his own house for himself and his family and stopped residing in the tenanted premises continuously from six months prior to filing the suit. Mr. S. K. Saxena, learned counsel for the tenant canvassed that the findings of the courts below are without any evidence, thus substantial question of law is involved in the second appeal. Learned counsel further contended that the landlord must plead and establish unauthorised change of user by proper evidence. The tenant cannot be expected to lead negative evidence. Reliance is placed on MSV Raja vs. Seeni Thevar (2001 WLC (SC) Civil 724), Jagdish Singh vs. Natthu Singh (AIR 1992 SC 1604), Atul Castings Ltd. vs. Bawa Gurvachan Singh ( (2001) 5 SCC 133) and Govindaraju vs. Mariamman ( (2005) 2 SCC 500 ). I find no substance in the argument of learned counsel. The concurrent findings arrived at by the learned courts below are base on proper appreciation of evidence and I am satisfied that no substantial question of law arises in this appeal. In Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar ( (1993) 3 SCC 722 = RLW 2000 (1) SC 89) it was held that:- " It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. " For these reasons, I find no merit in the appeal, he same stands dismissed without any order as to costs. .;