1 S.B. CIVIL SECOND APPEAL NO.16/2008 (Mohd. Salim & anr. Vs. Smt.Chaman Bano) Date of Order :: 7th March 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.O.P.Mehta for the appellants BY THE COURT: By way of this second appeal, the appellants-defendants seek to assail the judgment and decree dated 20.09.2007 passed by the District Judge, Jodhpur in Civil Appeal (Decree) No.95/2004 reversing the judgment and decree dated 16.08.2004 passed by the Additional Civil Judge (Junior Division) No.5 Jodhpur in Civil Suit No.271/1993. Briefly put, the background facts and relevant aspects are that the suit aforesaid was filed by the plaintiff-respondent seeking recovery of arrears of rent and eviction of the appellants-defendants essentially on the averments that the house situated at plot No.64 near Pakija Chakki, Masuria, Jodhpur was let by her husband Abdul Majid to the defendant No.1 Mohammed Salim on 01.08.1981 at a monthly rent of Rs.65/- for one year. The plaintiff, while alleging defendant No.1 having executed an agreement regarding tenancy in favour of her husband, submitted that after the demise of her husband, the defendant No.1 has discontinued making 2 payment of rent and without her consent has sublet the premises to the defendant No.2. The plaintiff also suggested that the defendant No.1 obtained possession of other house at Kamla Nehru Nagar and the defendant No.2 was continuing in possession of the suit premises as subletee. The plaintiff also asserted her reasonable and bona fide requirement of the suit premises because of expansion of her family. The defendants specifically denied execution of any agreement by defendant No.1 on 01.08.1981 and submitted that the premises were taken on rent by the defendant No.2 Smt.Jamila from Abdul Majid on 10.08.1978; and that defendant No.1 was minor at the relevant time and his being brother of defendant No.2, both have since been living together. It was also submitted that after the demise of the original landlord Abdul Majid, his elder son Mohammed Iqbal was regularly recovering the rent; and after July 1991, the plaintiff did not accept rent and rather asked for enhancement of rent. While denying the grounds of subletting and reasonable and bona fide requirement, the defendants also alleged availability of alternative accommodation with the plaintiff. After framing of necessary issues on the pleadings of the parties, the learned Trial Court considered the question in issue No.1 as to whether defendant No.1 took the premises on 3 rent on 01.08.1981 from the husband of the plaintiff and executed agreement in that regard. The learned Trial Court observed that the defendant No.1 Mohammed Salim was examined as DW-1 on 08.11.2001 and stated his age at 35 years and his year of birth was stated in the written statement as 1966 and thus proceeded to draw an inference that his age appeared to be about 16 years on 01.08.1981. The learned Trial Court also noticed the fact that the agreement dated 01.08.1981 was executed on a stamp paper that was issued on 17.08.1981 giving rise to serious question on its legality and validity; and then it was accompanied by another stamp of Rs.3/- purchased by some Deen Mohammed, and there was no clarification forthcoming in that regard from the plaintiff. On these considerations, the learned Trial court decided issue No.1 against the plaintiff. The learned Trial Court then proceeded to decide the relevant issue Nos.2,3 and 4 on default, subletting and reasonable and bona fide requirement against plaintiff essentially on the basis of finding on issue No.1 that there does not exist relationship of landlord and tenant between the plaintiff and the defendant No.1. Perusal of the record makes out that earlier the appeal taken by the plaintiff against the judgment and decree aforesaid was decided by the Additional District Judge No.1 4 Jodhpur (Appeal No.48/2004) on 24.01.2006; and while reversing the finding on issue No.1 and deciding the same in favour of the plaintiff, the learned Appellate Court proceeded to remand the matter to the learned Trial Court for decision on other issues. However, such a procedure by the Appellate Court was not countenanced by this Court in Civil Misc. Appeal No.104/2006 with the observation that there was no reason to remand the matter if the finding on issue No.1 was reversed because first Appellate Court itself could have decided the appeal on merits. However, the matter was ordered to be transferred to the Court of District Judge, Jodhpur for decision in accordance with law. The learned District Judge has proceeded to decide the appeal by the impugned judgment and decree dated 20.09.2007. While the learned District Judge has also not countenanced the submissions of the plaintiff about execution of the agreement on 01.08.1981 but then, has otherwise found the statements of the defendants not convincing; and the story of defendant No.2 having taken the premises on rent has not been believed and it has been held that the defendant No.1 was the tenant in the suit premises with reference to the oral evidence available on record. The learned Appellate Court has then decided issue No.3 in favour of the plaintiff and has held the premises having been sublet to defendant No.2. 5 The learned Appellate Court has also found that the plaintiff has been able to establish her reasonable and bona fide requirement in issue No.4; and has found the aspect of comparative hardship in favour of plaintiff in issue No.5 and has held that the requirement of the plaintiff cannot be satisfied with partial eviction. The Appellate Court has, accordingly, decreed the suit and has directed the defendants- appellants to vacate the suit premises within two months. The appellants-defendants seek to assail the judgment and decree so passed by the First Appellate Court. Learned counsel Mr.Mehta appearing for the appellants has strenuously contended that the plaintiff approached the court with fraudulent intent and filed fabricated document as has been found by both the subordinate Courts and, therefore, ought to have been thrown out on this count alone. Learned counsel submitted that a person playing fraud .is not entitled to any relief and has relied upon a decision of the Hon'ble Supreme Court in S.P.Chengalvaraya Naidu (dead) by LRs Vs. Jagannath (dead) by LRs: AIR 1994 SC 853. Learned counsel further submitted that finding on relationship of landlord and tenant between the plaintiff and the defendant No.1 cannot be sustained; and that the finding on subletting cannot be sustained either because the defendant No.1 cannot be held to be the tenant. Learned counsel further 6 contended that the question of comparative hardship could not have been decided in favour of the plaintiff because such hardship was required to be considered qua the real tenant and in view of the case set up by the plaintiff, the suit was bound to fail. Having given thoughtful consideration to the submissions and having examined the record, this Court is clearly of opinion that this appeal does not involve any substantial question of law and does not merit admission. The mainstay of the submission of learned counsel for the appellants has been that the plaintiff has played fraud by filing a false document. The submission is not compatible with the material available on record. The fundamental fact remains that, admittedly, the premises were let by the late husband of the plaintiff and not by herself. The plaintiff has obviously stated the facts as derived by her and the document in question also requires to be viewed in that perspective. However, coming to the aspect relating to the document later, relevant is to say in the first place that the story as set up by the defendants that defendant No.1 was minor in the year 1981 does not inspire confidence. Admittedly, the defendants have not produced any proof in relation to the core fact that defendant No.1 was minor in the year 1981. It is noticed from his statements that his age 7 had been recorded at 42 years in his voter's identity card that has allegedly been returned by him for incorrect age particulars. The defendant has further stated having a separate ration card but has alleged having deposited the same too. The relevant proofs have definitely been withheld by the defendants and the inference as drawn by the learned Trial Court on the age of defendant does not appear correct; rather, an adverse inference was required to be drawn against the defendants for withholding relevant evidence. Then, the defendant No.2 being the married sister of defendant No.1, both the defendants could not have been considered as members of the same family. The other evidence on record indicates that the defendant No.1 had been taking various premises on rent and vacating them also at the asking of the landlord but has stated the reason of his not vacating the premises in question that the plaintiff has filed the present suit. In the overall circumstances of the case, the finding as arrived at by the Appellate Court that defendant No.1 was a tenant essentially remains a finding on fact based on appreciation of evidence and does not appear suffering from any perversity. In this view of the matter, the questioned document Ex.1 basically looses its relevance. Even in relation to document Ex.1, it cannot be said that 8 the plaintiff has fabricated the same. As pointed out above, the premises were let by the late husband of the plaintiff and the plaintiff alleged the said document existing in favour of her late husband. For the recitals as made in the document about the defendant No.1 having taken the premises on rent from 01.08.1981, and the document having been executed on a stamp paper purchased on 17.08.1981, suffice is to say that such fact by itself cannot be taken decisive on the question of validity of the document. Executing a document in the nature of a rent note a few days after taking the premises on rent but referring it to the date of commencement of tenancy cannot be said to be wholly unnatural or improbable. Much has been sought to be said about statement of plaintiff's witnesses Mohammed Sabir, PW-3 who stated execution of the document in his presence and about deduction being available from his age statement that he was 35 years of age in the year 1988 and then his statement that he was born in the year 1978 that the said witness Mohammed Sabir was only three years of age at the time of execution of the document. True it is that the statement of said witness Mohammed Sabir is full of incongruities and inconsistencies and could not have been accepted as it is but then, only for the reason of such statement of PW-3, the preponderance of evidence as available on record could not have gone decisively against the 9 plaintiff. In the overall circumstances of the case, this Court is satisfied that the plaintiff cannot be said to have attempted any fraud as suggested on behalf of the appellants. The finding on issue No.1, in the overall comprehension of the facts available on record appears to be a correct finding of fact by the learned Appellate Court; and that concludes the fact about existence of relationship of landlord and tenant between the plaintiff and the defendant No.1. The finding on the question of subletting does not suffer from any perversity. In the fact situation of the present case, this Court is satisfied that the defendant No.1 has sublet the premises to the defendant No.2 and has incurred liability for ejectment. The finding on reasonable and bona fide requirement essentially remains a finding of fact and, again, does not appear to be suffering from any perversity. The defendant No.1 has rightly been held to be the tenant and he has been found taking possession of various premises and vacating the same. The aspect of comparative hardship also lies in favour of the plaintiff. There appears no reason to consider any interference in this second appeal. The appeal fails and is, therefore, dismissed summarily. (DINESH MAHESHWARI),J. MK