Dr. Vineet Kothari, J. - (1.) The learned trial court of the Munsif & Judicial Magistrate, First Class, Bhilwara has dismissed the eviction suit (Civil Original Suit No. 186/74 - Damodar Lal Vs. Dhannalal) filed by the plaintiff -respondent on 09.11.1982, but the learned appellate court of the Additional District Judge No. 1, Bhilwara granted the eviction decree in favour of the plaintiff -respondent, while allowing Civil Appeal No. 24/83 - Damodarlal Vs. Dhannalal filed against the aforesaid order of the learned trial court. Therefore, the present second appeal has been filed by the defendant -appellant -tenant in this Court on 01.11.1999.
(2.) While admitting the present appeal on 12.11.2003, a coordinate Bench of this Court has framed the following substantial questions of law for consideration by this Court: - "(i) Whether the first appellate court committed illegality in reversing the finding recorded by the trial court on issue No. 5 despite the fact that the plaintiff, who could have personal knowledge about the grant of permission for construction to the defendant did not appear in witness box to prove his case that the construction was raised without permission of the landlord and deprived the defendant from opportunity to cross -examine the plaintiff to prove his plea of consent of the landlord and further deprived of opportunity to demolish the case of the plaintiff by cross -examination of the plaintiff himself? (ii) Whether in a case where issue involved is about the fact of personal knowledge only of the plaintiff, whether it can be proved by the power of attorney holder and whether any that information given by the person to power of attorney holder will only amount to hearsay and cannot be considered as evidence as being inadmissible piece of evidence? (iii) Whether the first appellate court proceeded on a wrong assumption that it is for the tenant to prove that he obtained the permission to raise construction from the landlord instead of placing burden upon the plaintiff to prove that the tenant has raised the construction without permission of the landlord as required under Sub -clause (c) of Sub -section (1) of Sec. 13 of the Rajasthan Premises (Control of Rent Eviction) Act, 1950 -
(3.) An application (IA No. 768/2013) was also filed by the defendant -appellant -tenant for bringing on record the judgment of the coordinate Bench of this Court in S.B. Civil Second Appeal No. 109/2002 decided on 27.09.2012 - Smt. Sohan Devi & Ors. Vs. Shri Damodar Lal & Anr.; the same landlord, Damodarlal is the respondent in that case. The copy of the aforesaid judgment of the coordinate Bench (Hon'ble Mr. Justice Gopal Krishan Vyas) of this Court, by which the defendants' -tenants appeal came to be allowed by the coordinate Bench on 27.09.2012. However, the learned counsel for the plaintiff -respondent -landlord, Mr. B.K. Vyas has brought to the notice of the Court that the said judgment of the coordinate Bench of this Court has since been reversed by the Hon'ble Supreme Court in favour of landlord in Civil Appeal No. 231/2015 - Damodar Lal Vs. Sohan Devi & Ors. The relevant portions of the judgment of the coordinate Bench and the Hon'ble Supreme Court are quoted below for ready reference: - Relevant portion of the coordinate Bench Judgment dated 27.09.2012: "Admittedly, PW -1 Rameshwar Lal was original owner and after selling the said property plaintiff Damodar Lal became owner of the property in question, therefore, to prove the ground or issue of major and material alteration of construction he was to prove by leading his oral statement before the Court. Upon perusal of statement of PW -2 Bhanwar Lal, it is revealed that his statement is inclined towards exaggeration and improvement inasmuch as the plaintiff's witnesses have stated more than the pleadings in the plaint. Strangely, the trial court and first appellate court relied upon their statements and granted decree of eviction in favour of the plaintiff Damodar Lal which is not in consonance with the basic principles of law. The facts of the judgment cited by learned counsel for the respondent, reported in : AIR 1996 SC 3057, are altogether different than the facts of the present case. Therefore, there is no question of saying that PW -1 Rameshwar Lal was the best witness to prove the issue with regard to major alteration upon the property in question and to discredit his argument para 12 and 13 of the judgment of the Hon'ble Supreme Court in Janaki Vasudev Bhojwani's case (supra), quoted above, are sufficient. It is also worthwhile to observe that plaintiff Damodar Lal is admittedly residing at Mhow (M.P.) and he did not appear before the Court to prove the fact of major alterations though he has pleaded vague averments in the plaint but the learned trial court while relying upon the statement of PW -1 Rameshwar Lal treated the issue of major alterations to be proved. In the considered opinion of this Court, such finding in the absence of 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 PW -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 learned 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 drawing adverse inference for non -appearance of the plaintiff Damodar Lal because he was the only witness to prove the fact of material alteration by way of producing documentary evidence which is the registered sale -deed executed by Rameshwar Lal in his favour, so also, his oral statement. Therefore, the questions framed in this second appeal for adjudication are answered in affirmative. As a result, this second appeal is allowed. Both the judgments and decree impugned in this second appeal are hereby quashed and set aside. Suit of the plaintiff is ordered to be dismissed. Let the decree be drawn accordingly. In view of the above, various IAs also stand disposed of. Sd/ -(Gopal Krishan Vyas), J. Relevant portion of the Judgment dated 05.01.2016 of the Hon'ble Supreme Court: The facts unfold the plight of a poor landlord languishing in courts for over forty 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. Issue number -3 framed in Civil Regular Suit No. 191 of 1974 for eviction on the ground of unauthorized 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 document - . . . . . . . This Court has also dealt with other aspects of perversity. We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and the first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court. At this juncture, learned Counsel appearing for the respondents, praying for some reasonable time to vacate, submitted that in the nature of the timber and furniture business carried on at the premises, they require some time to find out alternate location/accommodation. Having regard to the entire facts and circumstances of the case, we are of the view that the respondents be given time upto 31st March, 2017 which is agreeable to the appellant as well, though reluctantly. The respondents are directed to file the usual undertaking in this Court and also continue to pay the use and occupation charges at the rate of Rs. 10,000/ - per month. In the event of any default or violation of the terms of the undertaking, the decree shall be executable forthwith, in addition to the liability for contempt of court. The appeal is allowed as above with costs quantified at Rs. 25,000/ -.";