Madhya Pradesh High Court
Bablu Alias Shivraj Singh vs Rajinder Singh Ratan (Dead) Thr. Lrs. … on 15 July, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
S.A.No.376-2021
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
SECOND APPEAL No. 376 of 2021
BABLU ALIAS SHIVRAJ SINGH
Versus
RAJINDER SINGH RATAN (DEAD) THR. LRS. SMT. KULDEEP
KAUR RATAN AND OTHERS
Appearance:
Shri Chandrahas Dubey - Advocate for the appellants.
Ms. Amrit Kaur Ruprah & Shri Sardar Avtar Singh - Advocates for the
respondents 1-2.
Reserved on :- 10.07.2025
Pronounced on :- 15.07.2025
_______________________________________________________________________
JUDGMENT
This second appeal has been preferred by the appellant/defendant
challenging the judgment and decree dated 04.02.2021 passed by 29th
Additional District Judge, Jabalpur, in Regular Civil Appeal No.7/2019
reversing the judgment and decree dated 29.11.2018 passed by 2 nd Civil
Judge Class-II, Jabalpur in Civil Suit No.47-A/2015, whereby trial Court
dismissed the suit in its entirety and upon filing civil appeal by the plaintiff,
first appellate Court has decreed the suit for eviction on the ground of
bonafide requirement of residence available under Section 12(1)(e) of the
M.P. Accommodation Control Act, 1961 (in short “the Act”).
2. In short, the facts are that the original plaintiff -Rajinder Singh (now
dead, through LRs), instituted a suit for eviction with the allegations that the
plaintiff has purchased the suit house admeasuring 915 sq.ft., over which
Kachcha house is constructed on an area 368 sq.ft., from defendant – Bablu
@ Shivraj Singh’s brother Indrajeet Kushwaha vide registered sale deed
dated 31.12.2012 (Ex.P/1) and received possession. It is also alleged that
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S.A.No.376-2021
after purchase of the house, the same was given on rent to the defendant on
01.03.2013 on the recommendation of his brother Indrajeet. Although the
defendant paid rent for a period of three months, but thereafter did not pay
any rent despite service of demand notice dated 03.02.2015. It is also alleged
that the house is in dilapidated condition and is not suitable for residence of
human being, but the defendant is residing in the house at the risk of his life.
It is also alleged that the defendant has also committed nuisance by willfully
damaging property, engaging in acts of vandalism within the house and
abusing the plaintiff. It is also alleged that the plaintiff is in need of the
house for residence and there is no other alternative suitable vacant
accommodation for his need. On inter alia allegations, the suit was
instituted.
3. The defendant appeared and filed written statement denying the plaint
allegations and contended that the defendant is not tenant in the suit house,
but he is in possession of the house as owner, because the house in question
belongs to his father Pahalwan, who purchased the same in the name of
Indrajeet vide registered sale deed dated 25.11.1983 (Ex.P/2) and as such, he
had no right to sell the house exclusively. As such, denying all the averments
of the plaint, suit was prayed to be dismissed.
4. On the basis of pleadings, trial Court framed issues and recorded
evidence of the parties. In support of his case, the plaintiff examined
Rajinder Singh Ratan (PW/1), Indrajeet Singh (PW/2), Trilok Singh (PW-3)
& Ranbeer Singh (PW/4) and produced documentary evidence (Ex.P/1 to
P/16). The defendant also examined himself-Bablu @ Shivraj Singh (DW-1)
& Ramcharan Yadav (DW-2) and produced documentary evidence (Ex.D/1
to D/4). After hearing the parties, trial Court upon due consideration of the
material available on record, held that there is no relationship of landlord
and tenant in between the parties and dismissed the suit by holding that the
plaintiff is not in need of the house and it is also not proved that the
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S.A.No.376-2021
defendant has committed defaults in making payment of rent and the house
is not suitable for residence.
5. Upon filing appeal by the plaintiff/respondent/landlord, first appellate
Court has reversed the judgment and decree of trial Court and decreed the
suit vide impugned judgment and decree dated 04.02.2021 holding thereby
that the defendant has made defaults in making payment of rent and the
plaintiff is in need of the suit accommodation for residence and there is no
other alternative accommodation available with the plaintiff. It is also held
that the house is in dilapidated condition and cannot be used without repairs.
Apparently, on the basis of sale deed and oral evidence of the plaintiff’s
witnesses, first appellate Court has assumed that there is relationship of
landlord and tenant in between the parties.
6. Against the aforesaid judgment and decree passed by first appellate
Court, second appeal was preferred by the appellant/defendant, which was
admitted for final hearing on 14.03.2023 on the following substantial
questions of law :-
“1.Whether learned first appellate Court has erred in reversing the judgment and
decree passed by learned trial Court just contrary to the law settled by the Apex
Court in the case of Santosh Hazari Vs. Purushottam Tiwari (Dead) By LRs
(2001) 3 SCC 179 ?
2. Whether in absence of any document, learned first appellate Court has erred
in holding the relationship of landlord and tenant between the parties to the suit
?
3. Whether learned first appellate Court has erred in granting decree of eviction
on the grounds available under section 12(1) of the M.P. Accommodation
Control Act, 1961 ?”
7. At the outset, learned counsel for the respondents/landlord submits
that after passing of decree of eviction by first appellate Court, the
respondents have been put in possession even before admission of the
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S.A.No.376-2021
second appeal, therefore, nothing remains to be decided in the instant second
appeal as the same has become infructuous.
8. Learned counsel for the appellant submits that although the decree has
been executed in hasty manner by evicting the appellant/defendant, but only
on that ground the second appeal cannot be dismissed and if the second
appeal succeeds, then the appellant is having right of restoration of
possession as per Section 144 of the CPC.
9. Learned counsel for the appellant also submits that trial Court has
while deciding the issue no.1, categorically held that in absence of any
documentary evidence, like rent note, rent receipt or any other document or
oral admission of the defendant, he cannot be said to have been inducted as a
tenant in the suit house only on the basis of oral evidence adduced on behalf
of the plaintiff and although the first appellate Court has reversed the
judgment and decree of trial Court, but has not considered the reasonings
recorded by trial Court in its judgment, which itself has vitiated the
judgment and decree passed by first appellate Court. In support of his
submissions, he placed reliance on the decision of Hon’ble Supreme Court
in the case of Santosh Hazari Vs. Purushottam Tiwari (Dead) By
LRs, (2001) 3 SCC 179. He also submits that merely on the premise that the
plaintiff has purchased the house vide registered sale deed (Ex.P/1), does not
entitle him to file the suit for eviction on the grounds available under Section
12(1) of the Rent Act and until and unless the plaintiff is able to establish
relationship of landlord and tenant in between the parties, he cannot get
decree of eviction. In support of his submissions, he placed reliance on the
decision of Hon’ble Supreme Court in the case of Tribhuvanshankar Vs.
Amrutlal, (2014) 2 SCC 788 (para 33). Taking this Court to paragraphs 26
to 28 of the impugned judgment and decree passed by first appellate Court,
he submits that admissible documentary evidence showing long possession
of defendant in the suit house, produced by the defendant has been
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S.A.No.376-2021
ignored/discarded on the basis of inadmissible oral evidence. He further
submits that the contention of the plaintiff regarding relationship in between
the parties ought to have been discarded in absence of any documentary
evidence. With these submissions, he prays for allowing the second appeal.
10. Learned counsel appearing for the respondents supports the impugned
judgment and decree passed by first appellate Court and prays for dismissal
of the second appeal with the further submissions that the finding on the
question of relationship of landlord and tenant is a pure finding of fact and is
not liable to be interfered with within the limited scope of second appeal
provided under Section 100 of CPC. He also submits that re-appreciation of
oral evidence is not permissible in the second appeal and first appellate
Court has rightly granted decree of eviction after recording reasoned
findings in paragraphs 26 to 28 of the impugned judgment in relation to
relationship of landlord and tenant in between the parties. With these
submissions, he prays for dismissal of the second appeal. In support of his
submissions, learned counsel for respondents placed reliance on the
decisions of Supreme court in the case of N.C. Daga Vs. Inder Mohan Singh
Rana, (2003) 1 SCC 453; and Vinod Kumar Verma Vs. Manmohan Verma
& Ors., Civil Appeal Nos. 5220-5221/2008 as well as the decisions of Delhi
High Court in the case of Neelam Sharma Vs. Ekant Rekhan, 2019 SCC
OnLine Del 6487 and Om Prakash Ashok Kumar & Sons Vs. Shri Ajay
Khurana, 2024 SCC OnLine Del 5228.
11. Heard learned counsel for the parties and perused the record.
12. So far as the argument advanced by learned counsel for the
respondents to the effect that as the decree of eviction has already been
executed, therefore, the second appeal has rendered infructuous, is
concerned, the right of appeal is a substantive right and is vested in a party at
the time of institution of the suit or other original proceeding, which can be
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S.A.No.376-2021
taken away only by some specific law, meaning thereby execution of decree
does not extinguish the right of appeal unless the law says so and even after
execution of decree of eviction during pendency of appeal, the appeal can be
heard on merits and the court retains the jurisdiction to decide the legal
questions involved.
13. In the case of N.C. Daga (supra), the Hon’ble Supreme Court in some
special circumstances where the tenant had failed to make out a case for
grant of leave to defend and upon execution of the concurrent order of
eviction passed by Additional Rent Controller affirmed by Delhi High Court,
refused to enter into merits of the case holding it to be a purely academic
question, however it is nowhere said that the revision has become
infructuous. Although, in the case of Vinod Kumar Verma (supra), Hon’ble
Supreme Court has upon taking possession by landlord dismissed the Civil
Appeal as infructuous, but has not laid down the law that in every case, upon
execution of decree or order, the appellant’s right to appeal extinguishes or
the Court cannot decide the same on merits. Other unreported decisions of
Hon’ble Delhi High Court are also on the same proposition, but they have
also not said anything about extinguishment of right of appeal upon
execution of decree or order and if these decisions are followed as it is, then
the provision of Section 144 of the CPC would become redundant.
14. In the case of Sushil Kumar Mehta vs. Gobind Ram Bohra, (1990) 1
SCC 193, the Hon’ble Supreme Court has held as under:-
“28. It is seen from the dates mentioned that there is no delay in Filing the leave
application. The leave application was filed within the limitation from the date of original
order of dismissal of the revision or on a later date dismissing the review application. It is
true that the writ petition was filed against the order in revision, but it does not preclude
the appellant to contest its invalidity in the appeal under Article 136. The decree was
executed pending the special leave petition. This court would relieve the party from
injustice in exercise of power under Article 136 of the Constitution when this court
noticed grave miscarriage of justice. It is always open to the appellant to take aid of S.
144 Civil Procedure Code for restitution. Therefore, merely because the decree has been
executed, on the facts when we find that decree is a nullity, we cannot decline to exercise
our power under Article 136 to set at nought illegal orders under a decree of nullity. The
7
S.A.No.376-2021appeal is accordingly allowed. But in the circumstances parties are directed to bear their
own costs.”
15. In the case of Atmaram Properties (P) Ltd. v. Federal Motors (P) Ltd.,
(2005) 1 SCC 705, the Hon’ble Supreme Court has held as under:-
“9. Dispossession, during the pendency of an appeal of a party in possession, is
generally considered to be ‘substantial loss’ to the party applying for stay of
execution within the meaning of clause (a) of sub-rule (3) of Rule 5 of Order 41 of
the Code. Clause (c) of the same provision mandates security for the due performance of
the decree or order as may ultimately be passed being furnished by the applicant for stay
as a condition precedent to the grant of order of stay. However, this is not the only
condition which the appellate Court can impose. The power to grant stay is discretionary
and flows from the jurisdiction conferred on an appellate Court which is equitable in
nature. To secure an order of stay merely by preferring an appeal is not the statutory right
conferred on the appellant. So also, an appellate Court is not ordained to grant an order of
stay merely because an appeal has been preferred and an application for an order of stay
has been made. Therefore, an applicant for order of stay must do equity for seeking
equity. Depending on the facts and circumstances of a given case an appellate Court,
while passing an order of stay, may put the parties on such terms the enforcement
whereof would satisfy the demand for justice of the party found successful at the end of
the appeal. In South Eastern Coalfields Ltd. Vs. State of M.P. & Ors., (2003) 8 SCC 648,
this Court while dealing with interim orders granted in favour of any party to litigation
for the purpose of extending protection to it, effective during the pendency of the
proceedings, has held that such interim orders, passed at an interim stage, stand reversed
in the event of the final decision going against the party successful in securing interim
orders in its favour; and the successful party at the end would be justified in
demanding compensation and being placed in the same situation in which it would
have been if the interim order would not have been passed against it. The successful
party can demand (a) the delivery to it of benefit earned by the opposite party under the
interim order of the High Court, or (b) compensation for what it has lost, and to grant
such relief is the inherent jurisdiction of the Court. In our opinion, while granting an
order of stay under Order 41 Rule 5 of the CPC, the appellate court does have jurisdiction
to put the party seeking stay order on such terms as would reasonably compensate the
party successful at the end of the appeal in so far as those proceedings are concerned.
Thus, for example, though a decree for payment of money is not ordinarily stayed by the
appellate Court, yet, if it exercises its jurisdiction to grant stay in an exceptional case it
may direct the appellant to make payment of the decretal amount with interest as a
condition precedent to the grant of stay, though the decree under appeal does not make
provision for payment of interest by the judgment-debtor to the decree-holder. Robust
commonsense, common knowledge of human affairs and events gained by judicial
experience and judicially noticeable facts, over and above the material available on
record – all these provide useful inputs as relevant facts for exercise of discretion while
passing an order and formulating the terms to put the parties on. After all, in the words of
Chief Justice Chandrachud, speaking for the Constitution Bench in Olga Tellis and Ors.
Vs. Bombay Municipal Corporation and Ors. – (1985) 3 SCC 545, –
“Common sense which is a cluster of life’s experiences, is often more dependable than the
rival facts presented by warring litigants”.”
10 to 15 ******.
16. We are, therefore, of the opinion that the tenant having suffered a decree or
order for eviction may continue his fight before the superior forum but, on the
termination of the proceedings and the decree or order of eviction first passed having
8
S.A.No.376-2021
been maintained, the tenancy would stand terminated with effect from the date of the
decree passed by the lower forum. In the case of premises governed by rent control
legislation, the decree of eviction on being affirmed, would be determinative of the date
of termination of tenancy and the decree of affirmation passed by the superior forum at
any subsequent stage or date, would not, by reference to the doctrine of merger have the
effect of postponing the date of termination of tenancy.”
16. Similarly, in the case of The State of Maharashtra & Anr. vs. M/s.
Super Max International Pvt. Ltd. & Ors., (2009) 9 SCC 372, the Hon’ble
Supreme Court has held as under:-
“73. In an appeal or revision, stay of execution of the decree(s) passed by the court(s)
below cannot be asked for as of right. While admitting the appeal or revision, it is
perfectly open to the court, to decline to grant any stay or to grant stay subject to some
reasonable condition. In case stay is not granted or in case the order of stay remains
inoperative for failure to satisfy the condition subject to which it is granted, the tenant-in-
revision will not have the protection of any of the provisions under the Rent Act relied
upon by Mr. Lalit and in all likelihood would be evicted before the revision is finally
decided. In the event the revision is allowed later on, the tenant’s remedy would be
only by way of restitution.
74 to 78. ****
79. Before concluding the decision one more question needs to be addressed: what
would be the position if the tenant’s appeal/revision is allowed and the eviction
decree is set aside? In that event, naturally, the status quo ante would be restored
and the tenant would be entitled to get back all the amounts that he was made to
pay in excess of the contractual rent. That being the position, the amount fixed by the
court over and above the contractual monthly rent, ordinarily, should not be directed to be
paid to the landlord during the pendency of the appeal/revision. The deposited amount,
along with the accrued interest, should only be paid after the final disposal to either side
depending upon the result of the case.”
17. In the case of Arun Harendra Deotale vs. Narhar Mahadeorao Pande,
2003 Supreme (Bombay) 312 = 2003 SCC Online Bom 1187, a coordinate
Bench of Bombay High Court has also held as under:-
“16. But then the subsequent event that after the decree was passed by the trial
Court and while the appeal was pending, the plaintiff got the possession of the suit
flat in pursuance of the execution of the decree has certainly bearing on the claim of
plaintiff for possession of the suit flat. It is no doubt true that the Appellate Court
was well conscious of the fact that during the pendency of the appeal the defendant
was dispossessed as the plaintiff had taken possession of the flat in execution
proceedings. That is how the Appellate Court observed in the judgment that if the
plaintiff has taken possession in execution proceedings, then remedy lies in restitution
under section 144 of the Civil Procedure Code. Therefore, the Appellate Court has
thereby impliedly indicated that the defendant is entitled to the recourse for restoration of
possession. Therefore, though defendant has lost possession, that by itself does not
make the appeal preferred by the plaintiff infructuous. However, in this context
another subsequent event has to be taken into consideration and it is the statement of fact
made by the Counsel for the defendant that the suit flat is not in possession of the
plaintiff. It appears that as the consequence of final decision of this Court in writ petition,
9
S.A.No.376-2021plaintiff has lost the possession. It is also clear between the parties to the suit that the suit
flat is not presently in possession either of plaintiff or the defendant.
17 to 22. *****
23. It is significant to note that the Appellate Court has also considered this submission in
its judgment. The Appellate Court while referring to the observations of this Court in
1985 Mh.L.J. page 548 supra observed in paragraph 5:
“It is said that an appeal is a continuation of suit. The appeal is a part of the cause
and does not create the cause. Appeal is a substantive right and the right of appeal
accrues to the litigant and exists as on and from the date the lease commences. It
should be noted that the Appellate Court is duty bound to take the note of the
change in law and give effect to the same even after judgment of Court of first
instance. As decree of the lower Court for eviction has not become final and it is
under challenge in the present appeal. Mere fact that the plaintiff obtained the
possession of the suit flat in the execution proceeding would not affect the legal right
and the remedies under section 144 of the Code of Civil Procedure.”
We have no hesitation in saying that the Appellate Court was right in holding that the suit
filed by the plaintiff was having inherent defect and legal disability as no permission
from the Rent Controller was sought. The fact that the plaintiff obtained possession in
execution proceeding during the pendency of the appeal is of no consequence inasmuch
as the pendency of the appeal by itself being continuation of the suit for all purposes and
thereby there was no finality to the decree passed by the trial Court. The position would
have been different, had the plaintiff taken possession in execution of the decree before
the defendant filed the appeal in the first Appellate Court or defendant would have filed
appeal.”
18. In view of the aforesaid legal position, in my considered opinion the
objection raised by learned Counsel for the respondents about
maintainability of the second appeal, on account of execution of decree of
eviction and dispossession of the appellant from the suit house, deserves to
be and is hereby rejected.
Substantial questions of law no. 1 & 2:
19. It is an undisputed fact available on record that the plaintiff purchased
the house from defendant-Bablu’s brother Indrajeet Kushwaha vide
registered sale deed dated 31.12.2012 (Ex.P/1). The plaintiff has come with
the case that after purchase of the house, he was put in possession and
thereafter on the request of defendant and upon recommendation of his
brother Indrajeet (vendor of the house), the plaintiff inducted the defendant
as a tenant on rent of Rs.1,000/- per month in the suit house and thereafter,
the defendant also paid rent of three months, but thereafter did not pay the
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S.A.No.376-2021
rent despite service of demand notice. In support of the case of tenancy, the
plaintiff has led only oral evidence to show that the defendant came in
possession only in pursuance of oral agreement of tenancy and was not in
possession prior to execution of sale deed.
20. As against the case of plaintiff, the defendant produced documentary
evidence (Ex.D/1 to D/4) showing his possession in the house since prior to
purchase of the house by plaintiff. The document (Ex.D/1) is a driving
license in the name of Shivraj Singh @ Bablu issued on 30.08.2007 at the
address of rented house ‘Pachpedhi, South Civil Lines, Jabalpur’. In this
regard another document, i.e. identity card issued by Election Commission
of India (Ex.D/2), has also been placed on record to show his possession in
the house w.e.f. 15.07.1995. Similarly, the electricity bill (Ex.D/3) in the
name of Smt. Chanda Kushwaha as well as ration card in his name has also
been placed on record showing his possession and these documents have
been discarded by first appellate Court for the reasons mentioned in
paragraph 26 of the impugned judgment, which being based on wrong
assumptions, surmises and conjectures, cannot be said to be correct. Further,
while accepting the case of plaintiff, first appellate Court has given much
emphasis to the statement of plaintiff’s witnesses Indrajeet Singh and Trilok
Singh solely on the ground that they are brothers of defendant, whereas the
defendant has clearly stated that their interests are against him and with a
view to defeat his rights, his brother Indrajeet had sold the rented/suit
property to the plaintiff without delivery of possession.
21. The plaintiff has examined Trilok Singh (PW-3) as a witness of the
oral tenancy, who is brother of the defendant, who in paragraph 4 of his
statement, has clearly admitted that we four brothers reside with the father.
He states that it is correct that Bablu is still residing in the suit house. He
himself says that after registry (i.e. the sale deed), he is residing in the house.
Further, the manner, in which the suggestions have been given to the
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S.A.No.376-2021
defendant regarding the documents (Ex.D/1 and D/2), itself is sufficient to
prove possession of the defendant in the house since prior to execution of
sale deed in favour of the plaintiff and not as a tenant after two months of
the sale deed.
22. In the case of Tribhuvanshankar (supra) the Hon’ble Supreme
Court has held as under :-
“30. On a seemly analysis of the principle stated in the aforesaid authorities, it is quite
vivid that there is a difference in exercise of jurisdiction when the civil court deals with a
lis relating to eviction brought before it under the provisions of Transfer of Property Act
and under any special enactment pertaining to eviction on specified grounds. Needless to
say, this court has cautiously added that if alternative relief is permissible within the
ambit of the Act, the position would be different. That apart, the Court can decide the
issue of title if a tenant disputes the same and the only purpose is to see whether the
denial of title of the landlord by the tenant is bona fide in the circumstances of the case.
We respectfully concur with the aforesaid view and we have no hesitation in holding that
the dictum laid down in Bhagwati Prasad (supra) and Bishwanath Agarwalla (supra) are
distinguishable, for in the said cases the suits were filed under the Transfer of Property
Act where the equitable relief under Order VII Rule 7 could be granted.
31. At this juncture, we are obliged to state that it would depend upon the Scheme of the
Act whether an alternative relief is permissible under the Act. In Rajendra Tiwari‘s case
the learned Judges, taking into consideration the width of the definition of the “landlord”
and “tenant” under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982, had
expressed the opinion. The dictionary clause under the Act, with which we are concerned
herein, uses similar expression. Thus, a limited enquiry pertaining to the status of the
parties, i.e., relationship of landlord and tenant could have been undertaken. Once a
finding was recorded that there was no relationship of landlord and tenant under
the Scheme of the Act, there was no necessity to enter into an enquiry with regard to
the title of the plaintiff based on the sale deed or the title of the defendant as put
forth by way of assertion of long possession. Similarly, the learned appellate Judge
while upholding the finding of the learned trial Judge that there was no relationship of
landlord and tenant between the parties, there was no warrant to reappreciate the evidence
to overturn any other conclusion. The High Court is justified to the extent that no
equitable relief could be granted in a suit instituted under the Act. But, it has committed
an illegality by affirming the judgment and decree passed by the learned trial Judge
because by such affirmation the defendant becomes the owner of the premises by
acquisition of title by prescription. When such an enquiry could not have been entered
upon and no finding could have been recorded and, in fact, the High Court has correctly
not dwelled upon it, the impugned judgment to that extent is vulnerable and accordingly
we set aside the said affirmation.”
23. Placing reliance on the aforesaid decision of Hon’ble Supreme Court
in the case of Tribhuvanshankar (supra), this court also in the case of
Jawahar Sen and others vs. Santosh Chadda (Dead) Thr. LRs. and others,
ILR 2024 MP 2087, held as under :-
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S.A.No.376-2021
“15. Although while deciding the issue No.2 courts below have held that there is
relationship of landlord and tenant among the plaintiffs and defendants, but that finding
has been recorded by courts below only on the premise that the plaintiffs have purchased
the suit property by way of registered sale deed (Ex.P/1). In my considered opinion, in
absence of any other material/admissible evidence, the findings of Courts below on issue
no. 2, are not sustainable and in absence of any other supportive evidence, mere sale deed
cannot be made basis for recording finding on the question of relationship of landlord and
tenant. Further, the documents Ex.P-15 & Ex.P-16 being the mutation entries of the
names of Bhargavas, have no relevance about relationship of landlord & tenant.”
24. Comparative study of the findings recorded by first appellate Court in
paragraphs 26 to 28 of its judgment as well as by trial Court in paragraphs
11 to 18 of its judgment, shows that first appellate Court has not properly
considered the reasonings assigned by trial Court and has not even reversed
the finding of possession before reversing the judgment and decree of trial
Court, which being contrary to the decision of Hon’ble Supreme Court in the
case of Santosh Hazari (supra), the impugned judgment and decree passed
by first appellate Court are not sustainable.
25. Further, first appellate Court has also become much impressed with
the document of title i.e. the sale deed executed by defendant’s brother
Indrajeet and on the wrong assumptions, surmises and conjectures that too
without any evidence in support of the plea of oral tenancy, recorded finding
of relationship of landlord and tenant in between the parties, which does not
appear to be sustainable. Consequently, the substantial questions of law no.
1 & 2 are decided in affirmative and in favour of the appellant/defendant and
against the respondents.
26. In view of the aforesaid discussion and upon due consideration of the
entire material available on record, in my considered opinion, first appellate
Court has committed an illegality in reversing the judgment and decree
passed by trial Court and in decreeing the suit. Further, in view of decisions
on substantial questions of law no. 1 & 2 and in view of the fact that neither
of the parties has advanced arguments on the substantial question of law no.
3, there is no necessity to decide the same.
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S.A.No.376-2021
27. Resultantly, the second appeal stands allowed and by setting aside
the impugned judgment and decree passed by first appellate Court, the
judgment and decree passed by trial Court are hereby restored and the suit of
the respondents/plaintiffs stands dismissed.
28. Pending application(s), if any, shall also stand disposed of.
(DWARKA DHISH BANSAL)
JUDGE
SN
SATTYENDAR NAGDEVE
2025.07.15 19:12:16 +05’30’
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