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Thursday, January 21, 2016

Eviction suit on the ground of structural alteration against the terms of lease with out consent of owner - non examination of plaintiff is not fatal = whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs-1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re-appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact=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 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.

                        IN THE SUPREME COURT OF INDIA



                        CIVIL APPELLATE JURISDICTION



                        CIVIL APPEAL NO. 231 OF 2015



DAMODAR LAL                                  ...  APPELLANT (S)

                                   VERSUS

SOHAN DEVI AND OTHERS                  ... RESPONDENT (S)



                           J  U  D  G  M  E  N  T



KURIAN, J.:



The facts unfold the plight of a poor landlord  languishing  in  courts  for
over fourty 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  unauthorised  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 agreement?”



Having analysed and appreciated the evidence of PWs-1 and 2 and also DWs-  1
to 4, the trial court came to the following finding on the issue:

“Thus all the witnesses of both sides have stated that  when  the  plot  was
taken on rent, at that time, the plot  was  empty.  The  disputed  plot  was
taken on rent. Later walls were constructed; sheets were put and were  taken
into use as shop and godown. Even today the plot is being used as  shop  and
godown.”



Dissatisfied, the tenants took up the matter in appeal before the  Court  of
the Additional District Judge-I, Bhilwara, Rajasthan in Civil Appeal No.  20
of  1999  (originally  presented  before  the  District   Judge,   Bhilwara,
Rajasthan on 19.01.1990 and since transferred  to  the  Additional  District
Judge). In the judgment dated 22.09.2000, the first appellate  court,  after
re-appreciating the whole evidence, came to the conclusion that:

“... In  my  opinion  the  evidence  that  had  been  presented  before  the
subordinate court, the subordinate court has not made any mistake in  coming
to the conclusion that the tenant has made structural changes in the  rented
accommodation. The appellant  tenant  has  not  been  able  to  present  any
evidence to show that the consent of the land lord  had  been  taken  before
making structural changes. ...”

On such findings, the appeal was dismissed. Thus, there are two findings  of
fact against the tenants/respondents.

The tenants pursued the matter in Second Appeal No. 109 of 2000  before  the
High Court of Rajasthan which was allowed by  the  impugned  judgment  dated
27.09.2012. The following were the substantial questions of  law  framed  in
the second appeal:

“ (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
Damodar Lal in the witness box?”



The High Court, in the second  appeal,  came  to  the  conclusion  that  the
concurrent finding on structural change, in the absence of the statement  of
the plaintiff before the court, cannot be treated  to  be  trustworthy.  The
High Court went further and held that adverse  inference  should  have  been
drawn for the non-appearance of the plaintiff in the  witness  box,  and  in
such circumstances, the finding on material alteration is totally  perverse.
We feel it necessary  to  quote  the  relevant  portion  from  the  impugned
judgment:

“... In the considered opinion of this Court, such finding in 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 P.W.-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 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 Rameswhwar Lal in favour, so also, his oral statement.”



And thus, the High  Court  allowed  the  second  appeal  and  the  suit  for
eviction was dismissed. Aggrieved, the landlord is before us  in  the  civil
appeal.

‘Perversity’ has been the subject matter of umpteen number of  decisions  of
this Court. It has also been settled by  several  decisions  of  this  Court
that the first appellate court, under Section  96  of  The  Civil  Procedure
Code, 1908, is the last court of facts unless  the  findings  are  based  on
evidence or are perverse.

In Krishnan v. Backiam and another[1], it  has  been  held  at  paragraph-11
that:

“11.  It may be mentioned that the first appellate court  under  Section  96
CPC is the last court of facts.  The  High  Court  in  second  appeal  under
Section 100 CPC cannot interfere with the findings of fact recorded  by  the
first appellate court under Section 96 CPC. No doubt the  findings  of  fact
of the first appellate court can be  challenged  in  second  appeal  on  the
ground that the said findings are based on no evidence or are perverse,  but
even in that case a question of law has to be formulated and framed  by  the
High Court to that effect. …”



In Gurvachan  Kaur  and  others  v.  Salikram  (Dead)  Through  Lrs.[2],  at
paragraph-10, this principle has been reiterated:

“10.  It is settled law that in exercise of power under Section 100  of  the
Code of Civil Procedure, the High Court cannot interfere  with  the  finding
of fact recorded by the first appellate court which is the  final  court  of
fact, unless the same is found to be perverse. This being the  position,  it
must be held that the High Court was not justified in reversing the  finding
of fact recorded by the first appellate court on the issues of existence  of
landlord-tenant relationship between the plaintiff  and  the  defendant  and
default committed by the latter in payment of rent.”



In the case before us, there is clear and cogent evidence  on  the  side  of
the plaintiff/appellant that there has been  structural  alteration  in  the
premises rented out to the respondents without his consent. Attempt  by  the
defendants/respondents to establish otherwise has been found to  be  totally
non-acceptable to the trial court as well  as  the  first  appellate  court.
Material  alteration  of  a  property  is  not  a  fact  confined   to   the
exclusive/and personal knowledge of the owner. It is a matter  of  evidence,
be it from the owner himself or any other witness speaking on behalf of  the
plaintiff who is conversant with the facts and the situation.  PW-1  is  the
vendor of the plaintiff, who is also his power of attorney.  He  has  stated
in unmistakable terms that there was structural alteration in  violation  of
the rent agreement. PW-2 has also supported the case of the plaintiff.  Even
the witnesses on behalf  of  the  defendant,  partially  admitted  that  the
defendants had effected some structural changes.

Be that as it may, the question whether there is a structural alteration  in
a tenanted premises is not a fact limited to the personal knowledge  of  the
owner. It can be proved  by  any  admissible  and  reliable  evidence.  That
burden has been successfully discharged by the plaintiff by examining  PWs-1
and 2. The defendants could not shake that evidence. In fact, that  fact  is
proved partially from the evidence  of  the  defendants  themselves,  as  an
admitted fact. Hence, only the trial court came to the definite  finding  on
structural  alteration.  That  finding  has  been  endorsed  by  the   first
appellate  court  on                              re-appreciation   of   the
evidence, and therefore, the High Court in second appeal was  not  justified
in upsetting the finding which is a  pure  question  of  fact.  We  have  no
hesitation to note that both the questions of law framed by the  High  Court
are not substantial questions of law. Even if the finding of fact is  wrong,
that by itself will not constitute a question  of  law.  The  wrong  finding
should stem out on a complete misreading of evidence or it should  be  based
only on conjectures and surmises.  Safest  approach  on  perversity  is  the
classic approach on the reasonable man’s inference on the facts. To him,  if
the conclusion on  the  facts  in  evidence  made  by  the  court  below  is
possible,  there  is  no  perversity.  If  not,  the  finding  is  perverse.
Inadequacy  of  evidence  or  a  different  reading  of  evidence   is   not
perversity.

In Kulwant Kaur and others v. Gurdial Singh Mann  (Dead)  by  Lrs.[3],  this
Court has dealt with the limited leeway  available  to  the  High  Court  in
second appeal. To quote paragraph-34:



“34. Admittedly, Section 100 has introduced a  definite  restriction  on  to
the exercise of jurisdiction in a second appeal so far as the High Court  is
concerned. Needless to record that the Code of Civil  Procedure  (Amendment)
Act, 1976 introduced such an embargo for such definite objectives and  since
we are not required to further probe on that score,  we  are  not  detailing
out, but the fact remains that while it is true that in a  second  appeal  a
finding of fact, even if erroneous, will  generally  not  be  disturbed  but
where it is found that the findings stand vitiated on wrong test and on  the
basis of assumptions and conjectures and resultantly there is an element  of
perversity involved therein, the High Court in our view will be  within  its
jurisdiction to deal with the issue. This is, however,  only  in  the  event
such a fact is brought to  light  by  the  High  Court  explicitly  and  the
judgment should also be categorical as to the issue of perversity  vis-à-vis
the concept of justice. Needless to say however, that perversity  itself  is
a  substantial  question  worth  adjudication  —  what  is  required  is   a
categorical finding on the part of the High Court as to perversity. In  this
context reference be had to Section 103 of the Code which reads as below:

“103. In any second appeal, the High Court  may,  if  the  evidence  on  the
record is sufficient, determine any issue necessary for the disposal of  the
appeal,—

(a) which has not been determined by the lower appellate court  or  by  both
the court of first instance and the lower appellate court, or

(b) which has been wrongly determined by such court or courts by  reason  of
a decision on such question of law as is referred to in Section 100.”

The requirements stand specified in Section 103  and  nothing  short  of  it
will bring it within the ambit of Section 100 since the issue of  perversity
will also come within the ambit of substantial question of  law  as  noticed
above. The legality of finding  of  fact  cannot  but  be  termed  to  be  a
question of law.

We reiterate however, that there must be a definite finding to  that  effect
in the judgment of the High Court so as to make it evident that Section  100
of the Code stands complied with.”



In S.R. Tiwari v. Union of India[4], after referring  to  the  decisions  of
this Court, starting with Rajinder Kumar Kindra  v.   Delhi  Administration,
Through Secretary (Labour) and others[5], it was held at paragraph-30:

“30. The findings of fact recorded by a court can be held to be perverse  if
the findings  have  been  arrived  at  by  ignoring  or  excluding  relevant
material or by taking into consideration  irrelevant/inadmissible  material.
The finding may also be said to be perverse if it is “against the weight  of
evidence”, or if the finding so outrageously defies logic as to suffer  from
the vice of irrationality. If a decision is arrived at on the  basis  of  no
evidence or thoroughly unreliable evidence and no  reasonable  person  would
act upon it, the order would be perverse. But if there is some  evidence  on
record which is acceptable and which could be relied upon,  the  conclusions
would not be treated as perverse and the findings would  not  be  interfered
with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC  635  :  1985
SCC  (L&S)  131  :  AIR  1984  SC   1805]   , Kuldeep   Singh v. Commr.   of
Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429 : AIR  1999  SC  677]  , Gamini
Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 : (2010) 1 SCC  (Cri)
372 : AIR 2010 SC 589]  and Babu v. State  of  Kerala[(2010)  9  SCC  189  :
(2010) 3 SCC (Cri) 1179] .)”



      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  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 up to 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 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/-.



                                                     ...................CJI.
          (T. S. Thakur)






                                                    ......................J.
       (Kurian Joseph)

New Delhi;
January 5, 2016
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[1]

       (2007) 12 SCC 190
[2]    (2010) 15 SCC 530
[3]    (2001) 4 SCC 262
[4]    (2013) 6 SCC 602
[5]    (1984) 4 SCC 635


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                                                                  REPORTABLE





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