JUDGMENT
Prakash Tatia, J.
1. This second appeal by the plaintiff- appellant, is against the judgment and decree dated 5.4.1980 passed by the learned Addl. District Judge No. 2, Jodhpur whereby the learned Addl. District Judge No. 2 set aside the judgment and decree dated 24.7.1978 passed by the trial court decreeing the suit for eviction against respondent-defendant Smt. Chand Kumari (now deceased), under the Rajasthan Premises (Control of Rent and Eviction) Act. 1950 (for short the Act of 1950).
2. The appellant-landlord-plaintiff filed the present suit for eviction of his respondent-tenant-defendants; Smt. Chand Kumari and her son Narendra Kumar. According to the plaintiff, the suit property described in para No. 1 of the plaint was let out to the defendants and the defendants were paying the rent @ of Rs. 50/- per month. According to plaintiff, the defendants have committed default in payment of rent as they did not pay the rent of the premises to the plaintiff from June, 1968 to April, 1970. The plaintiff also claimed Rs. 500/- which was due in defendants on account of arrears of rent of the period prior to June 1968. The second ground for eviction was subletting of the premises by the defendants after closer of their business, which they were running in the name of M/s. Ganesh Timber Co., to one Shri Rashid and another person Shri Mukand Chand and to a Firm Shri Rathore Transport Third ground for decree for eviction against the tenant was the personal need of the plaintiff who intends to construct his house on the plot in dispute.
3. The defendants’ No. 1 and 2 submitted separate written statement but the pleading of both the defendants contains same defence and same additional pleas. According to the defendants, the defendants are not tenants in the suit property and the defendants claimed the suit property being their ancestral property, therefore, they claimed that they have right to use the property as per their own wished. The defendants denied the payment of rent by them to the plaintiff at any time and further pleaded that the alleged sublettees are not doing any business in the suit property. In additional pleading, both the defendants submitted that defendant No. 1 was partner in the M/s. Ganesh Timber Company and she was not the proprietor. Defendants further submitted that defendant No. 1 invested Rs. 15,000/- in the suit property. The defendant No. 2 took a specific plea that defendant No. 2 was never appointed as agent by the defendant No. 1 nor he was given any power to do anything on behalf of defendant No. 1. The defendant No. 1 also pleaded, in same way, by saying that she never appointed defendant No. 2 as her agent nor defendant No. 2 was given any power by the defendant No. 1.
4. When the defendants denied not only relation of landlord and tenant between the plaintiff and defendants but also pleaded that the suit property belongs to defendant no 1 and her husband, the plaintiff submitted rejoinder to the written statement. In rejoinder, the plaintiff again empathetically reiterated that defendants are the tenants of the plaintiff in the suit property and the defendants took the premises for the business of Ganesh Timber Company. The plaintiff also submitted the defendant No. 1 husband was in government service and he got started the business in the name of his wife, defendant No. 1 and his son defendant No. 1 was looking after the business and defendant No. 2 will pay the rent on behalf of both. It is also submitted that the defendant No. 1’s husband was also used to work there. The plaintiff gave relevant details, how the rent was paid by the defendants, when rent was increased, about giving of rent receipts to the defendants, the detail of cheques by which the rent was paid by the defendants etc. The plaintiff thereafter submitted that rent was paid mostly by cheques and in case, any cash rent was paid it was through voucher and on printed receipts. The plaintiff submitted that at the time of letting out the premises, the plaintiff was living out from Jodhpur, therefore, the property was let out by the plaintiff’s brother Shanti Lal, and he was receiving the rent on behalf of the plaintiff Since the defendant denied the title of the plaintiff therefore plaintiff submitted the Patta of the plot in dispute.
5. The trial court granted permission to the defendant No. 1 to submit reply to the rejoinder filed by the plaintiff. In the reply to rejoinder, the defendant No. 1 stated that the property in dispute was in possession of the plaintiff’s father Shri Kan Mal since last 40 years and he died in the year 1958. Before his death, Shri Kan Mal was doing business with one Madan Lal, in the name of Ganesh Timber Company. After the death of Kan Mal, the plaintiff became partner with Madan Lal. Madan Lal was looking after entire business and was keeping the accounts of the firm. All the relevant paper and books of accounts were with Madan Lal and he died, therefore, the defendants are not in possession of books of the firm and the relevant documents. According to the defendants, the business of Ganesh Timber Company increased and, therefore, Madan Lal took a plot on rent from plaintiff’s brother Shanti Kumar in the month of November, 1962 on a rent of Rs. 23/- per month. The rent of this plot was increased to Rs. 42/- from 1.1.1965 and it was further increased of Rs. 50/- from 1.1.1966. The plaintiff pleaded that she is not remembering how and when the rent was paid and she is not remembering whether any cheques were given or not and whether any receipts were taken or not. The plot which was taken from Shanti Kumar on rent is situated in the south side of the plot in dispute, that too after a lane, it is further submitted that these facts (of taking on rent a land in the sought of the plot in dispute from Shanti Kumar) have nothing to do with the plot in dispute as the plot which was taken from Shanti Kumar was again handed over to Shanti Kumar on 1.7.1968.
6. The trial court framed as many as 15 issues. Both the parties produced documentary and oral evidence. The trial court decided issue No. 1 in favour of the plaintiff and held that defendant No. 1 took the plot in dispute on rent from the plaintiff on 1.1.1962. The defendant No. 2 is not the tenant in the premises, he only paid the rent on behalf of the defendant No. 1. The trail court further held that since Shanti Kumar’s plot was in occupation of other tenants from 1962 to 1968, therefore, defendants could not have occupied the plot of Shanti Kumar. The defendants further failed to prove the defendant No. 1’s father-in-law was in old possession of the property in dispute as no independent witness was produced in support of the said plea of the defendants. The trial court considered the various documents produced by the plaintiff and held that the defendants’ case, that they took one premises of Shanti Kumar on rent in the months of November, 1962 from plaintiff’s brother Shanti Lal, stands falsified as if it was so then there was no reason for the defendants to pay the rent by cheques in the months of June, 1962, therefore, the trial court held that it was the payment of the rent of the disputed plot of the plaintiff through Shanti Lal as he was collecting the rent on behalf of the plaintiff for the plot in dispute. The trial court further, on the basis of the cheques of Rs. 42, Dt. 3.7.1962, Ex.23, found that the case of the defendants, that rent was increased to Rs. 42/- from 1.1.1995 is wrong as the defendants were paying the rent @ Rs. 42/- even from before July, 1962. The trial court also critically examined the documents produced by the defendants, Ex.A-1 which is a letter signed by Shanti Kumar, plaintiff’s brother addressed to the Administrator, Municipal Board, jodhpur Giving no objection for installing saw-mill and the alleged admission of Shanti Kumar, in his statement in court in this very case, wherein Shanti Kumar stated that he let out the property in dispute to Jaswant Mal, husband of defendant No. 1, and rejected the plea of the defendant about letting out the property in dispute to Jaswant Mal. The trial court further held that business in the name of Ganesh Timber Company was going on even prior to 1.1.1962 but it cannot be held that said business was in the property in dispute.
7. The trial court held that rent of Rs. 500/- of the period falling before June, 1968 was also due in the defendants and since the defendants admittedly did not pay the rent as claimed by the plaintiff in the plaint till the decision of the suit, therefore, the defendant No. 1 is liable to be evicted from the property in dispute. The trial court also decided the issues of personal bona fide necessity of the plaintiff and the issue of comparative hardship in favour of the plaintiff.
8. However, the trial court decided the issue of subletting of the premises by the defendants against the plaintiff. Issue No. 6 was not decided by the trial court as this was an issue relating to the title of the disputed property and the issue was not pressed by the counsels for the defendants as it was beyond the jurisdiction of the court hearing the suit under Rent Control Act to adjudicate upon the title of property. The trial court decided issued No. 7 as not pressed and while deciding issue No. 8 and 13, held that defendants are not entitled for any special costs of damages. The trial court in issue No. 9 held that in case the plaintiff will evict the defendant No. 1, the defendant No. 1 will be free to take her fixtures which she installed in the premises. The trial court rejected the prayer of the defendants for reduction in rent of the premises. It was further held that defendant No. 2 was authorised by defendant No. 1 to pay the rent. Ultimately, the suit for eviction against the defendant No. 1 was decreed by the trial court on 24.7.1978. However, it is relevant to mention here that the trial court found that defendant No. 1 alone is tenant and defendant No. 2 is not the tenant, therefore dismissed the suit against defendant No. 2.
9. Since the suit was decreed only against the defendant No. 1 alone, the defendant No. 1 Smt. Chand Kumari, without impleading defendant No. 2, preferred appeal against the judgment and decree of the trial court dated 24.7.1978. The plaintiff did not challenge the dismissal of suit against the defendant No. 2. The Appellate court allowed the appeal of the defendant and held that defendant No. 1 has not been proved to be tenant rather in view of the admission of the plaintiff’s brother-witness Shanti Kumar, the defendant No. 1’s husband Jaswant Mal is the tenant and since he is not party in the suit, therefore, suit of the plaintiff is liable to be dismissed.
10. However, despite holding that the defendants are not tenants in the suit premises, still the first appellate court upheld that finding of the trial court in issue No. 2 and 7 and held that rent of Rs. 500/- prior to June, 1968 is due in defendant No. 1 and suit for recovery of the rent is within limitation. The first appellate court also upheld that Finding of the trial court on issue No. 10 and rejected the defendant’s plea for reducing the rent from Rs. 50/- per month to Rs. 23/- per month by fixing Rs/- as standard rent of the premises. The first appellate court reversed the finding of trial court on issue No. 4 and 15 about personal necessity of the plaintiff for the suit premises and issue of comparative hardship. In last, the first appellate court in view of the decision on issues No. 1, 4 and 15 against the plaintiff and in favour of the defendant, allowed the appeal of the defendant-respondent by judgment and decree dated 5.4.1980 and dismissed the suit of the plaintiff.
11. The appeal was admitted on 21.8.1981 for hearing upon finding that following substantial questions of law are involved in this appeal:-
“1. Whether the learned lower appellate court which reversed the judgment of the trial court has misconstrued the evidence on record particularly Ex. 2 to 6?
2. Whether the cheques towards the rent signed by Narendra Kumar S/o Smt. Chand Kumari were paid as her agent, and if so what is its effect on the suit?
3. Whether having held that the suit property is owned by the appellant and no plea of adverse possession being set up by the respondent notwithstanding that the learned lower appellate court held that the relationship of landlord and tenant is not established in between the appellant and the respondent, the court must have still decree the suit on the basis of title because it was proved on record.”
12. The appeal was heard and allowed by this Court by judgment and decree dated 14.1.2000. The defendant respondent preferred Special Leave to Appeal against the judgment dated 14.1.2000 and Hon’ble the Supreme Court granted leave and ultimately, allowed the appeal of the respondent by order dated 31.10.2001. Hon’ble the Supreme Court after considering the arguments of the both the parties, observed as under:-
“Without delving further into merits of the case of the parties, we deem it sufficient to observe that the reasons stated in the judgment of the High Court for interfering with the finding of fact relating to existence or otherwise of relationship of landlord and tenant between the parties are not satisfactory keeping in view limitation provided under Section 100, C.P.C.”
13. Hon’ble Supreme Court further took note of the objection of the tenant appellants before the Hon’ble Supreme Court about not formulating any question of applicability of Section 13(I)(F) of the Act (Act of 1950) (ground for eviction of the tenant upon denial of landlord’s title by the tenant or because of renunciation of character by the tenant as of tenant) at the time of admission of second appeal or at the time of the hearing of the case and s3t aside the judgment of this Court dated 14.1.2000 and remanded the matter back to the High Court for fresh disposal in accordance with law after formulating the substantial question of law which may arise in this case Hon’ble Supreme Court further observed that both the parties will be given opportunities of placing their case on the point of formulating of substantial question of law in compliance of the provisions of Section 100(5) C.P.C.
14. After receipt of the order of the Hon’ble Supreme Court, notices were issued to the parties. The record of the trial court and the first appellate court were called again and after hearing both the parties, following substantial question of law was framed by this court on 28.8.2003:-
“Whether this Court can pass the decree for eviction against the tenant on the ground of denial of title which is ground for eviction under Section 13(1) (f) of the Rajasthan Premises (Control of rent and eviction) Act, 1950, despite the fact the plaintiff has not sought decree on this ground by amending the plaint yet, but the fact of denial of title is available in the written statement of the defendant and despite the fact that the trial court as well as first appellate court have not decreed the suit of the plaintiff on the said ground?”
15. I have heard learned counsel for the parties at length and perused the entire record. According to the learned counsel for the appellant, the first appellate court has committed gross error of law in reversing the funding of facts recorded by the trial court after appreciation of the evidence produced by both the parties. More emphasis of the learned counsel for the appellant is on the ground that once the trial court decides questions of facts, the jurisdiction of the appellate court is limited for interference in the finding of the trial court but in this case, not only the first appellate court exceeded in its jurisdiction in interfering with the finding of fact recorded by the trial court but the first appellate court even did not consider the reasons given by the trial court for arriving at a decision. It is further submitted that even the reasons forming foundation for the decision have not been reversed by the first appellate court before upsetting the decision on issues. According to the learned counsel for the appellant, the trial court held that defendant No. 1 is tenant. It is nobody’s case, not even of defendants and not even of Jaswant Mal himself that Jaswant Mal was or is tenant in the disputed premises or he took on rent any premises still the first appellate court held that Jaswant Mal is tenant in the suit property. Learned counsel for the appellant submits that the plaintiff pleaded that suit property was let out to the defendant Chand Kumari and her son Narendra Kumar. When defendant denied the tenancy in written statement, the appellant plaintiff submitted rejoinder and gave the background in which the defendants took the premises on rent. The plaintiff submitted that the premises was taken on rent from 1.1.1992. Since Shri Jaswant Mal (husband of defendant No. 1 and father of defendant No. 2) was in government service, therefore, he got started business in the names of both the defendants. Learned counsel for the appellant vehemently submitted that even after knowledge of the all facts as disclosed in plaint and rejoinder of the plaintiff, the defendants, who even after availing opportunity of filing reply to rejoinder, did not plead that the suit property was taken on rent by Jaswant Mal, the husband of defendant No. 1 and father of defendant No. 2. The entire case of the defendant No. 1 and 2 was that the suit property belongs to them as it is their ancestral property and was in possession of father-in-law of the defendant till his death and from the time of death of defendant No. 1’s father-in- law, it is in possession of defendant No. 1. In view of the above, it is admitted case of the even defendants that Jaswant Mal was never in possession of the property in dispute, either as tenant or as owner or even as co-sharer with defendants. According to learned counsel for the appellant, the finding of the first appellate court about tenancy of Jaswant Mal, is result of misreading of the pleadings and evidence available on record particularly Ex.2 to Ex.6 as well as because of the fact that appellate court failed to notice the real controversy between the parties. It further submitted that the first appellate court even could not appreciate the facts of the case and reached to conclusion which no one could have conceived. The first appellate court dismissed the suit of the plaintiff after recording a finding which appears to be in favour of Jaswant Mal (though he is not party in the suit) but in fact can not be accepted by the said Jaswant Mal and defendants No. 1 and if defendant or Jaswant Mal accepts the finding of the first appellate court then also it gives all the more strong reason for setting aside of the judgment of the first appellate court because, support to such perverse finding will expose the conduce of the defendants and said Jaswant Mal.
16. Learned counsel for the appellant also submitted that the plaintiff proved his title and defendant failed to prove his title to the property, therefore, the plaintiff was entitled for the decree of eviction against the defendant on the basis of the title but this aspect was not considered by the first appellate court.
17. Lastly, the learned counsel for the appellant submitted that if the question of tenancy is decided in favour of the plaintiff appellant then the appellant plaintiff landlord is entitled for the decree for eviction against the respondent tenant under Sub-clause (f) of Sub-section (1) of Section 13 of the Act of 1950 as the defendants in their written statement unequivocally denied the title of the plaintiff and also renounced their character as tenant. It is also submitted that when the denial in the written statement is unqualified and unequivocal with complete assertion of title in himself by the defendant then the court can pass the decree for eviction against the tenant from the rented premises even if the suit has not been amended incorporating such ground and issue has not been framed on the said ground as no prejudice can be caused to the defendants who voluntarily asserted title to the property in himself and denied the title of his landlord. In the present case denial of plaintiff title and renunciation of tenant’s character is so notorious, it can not be condoned and the plaintiff has not waived his right nor has condoned the act of the defendant and more than 30 years have passed in litigation. It is also submitted that as per the definition of the landlord given in the Act of 1950, the landlord need not to be even owner of the property and, therefore, in such case even if question of landlord’s title can not be decided even then once defendant is found to be tenant, the plaintiff-landlord becomes entitled for decree for eviction against such tenant. It is submitted that it is minimum requirement, recognised by law, that the tenant should not question either title or should not renounce his relationship with his landlord once he admitted himself to be tenant in the premises of the landlord. Learned counsel for the appellant relied upon several judgments of this Court in support of his plea which are Moolchand v. Isharlal (1), Heera Nand v. Abdul Sattar (2), Smt. Pushpa Sharma v. Gopal Lal Rawat (3), Lallu Narayan v. Ratan Chand Lunia (4), Satya Narain v. Bajran Lal (5) and Sheo Narain alias Saon v. Janki Prasad (dead) through L.Rs. Radhey Shyam and Ors. (6).
18. The learned counsel for the respondents vehemently contested the appeal and invited this Court’s attention towards the order of the Hon’ble Supreme Court passed on 31.10.2001 by which this Court’s judgment dated 14.1.2000 was set aside by the Hon’ble Supreme Court. According to the learned counsel for the respondent. Hon’ble Supreme Court categorically held that”….. reasons stated in the judgment of the High Court for interfering with the finding of fact relating to existence or otherwise of relationship of landlord and tenant between the parties are not satisfactory keeping in view the limitation provided under Section 100 C.P.C.” According to the learned counsel for the respondent, all the reasons given in the judgment of this court in its judgment dated 14.1.2000 are found by the Hon’ble Supreme Court no sufficient reasons for interfering in the finding of fact by the High Court According to the learned counsel for the respondent, a bare perusal of the facts and the reasons given in the judgment dated 14.1.2000, it is clear that this Court in above judgment dealt with the oral evidence and the documentary evidence and, thereafter, interfered in the finding of fact recovered by the first appellate court. According to the learned counsel for the appellant, there is no other evidence except which was considered by this court when the appeal of the appellant was allowed by the judgment and decree dated 14.1.2000. Therefore, in view of the observation of the Hon’ble Supreme Court, this Court cannot re-examine the issue of existence of relationship of landlord and tenant between the parties. It is also submitted that the first appellate court after appreciation of evidence accepted the admission of the plaintiff’s brother Shanti Lal who let out the premises, therefore, there is no reason for this court to re-appreciate entire evidence and it is not a case of no evidence in support of finding but contrary to it, the finding is based on admission. It is also vehemently submitted that even if there is possibility of taking a different view by this court then also this Court can not and should not interfere in finding of fact recorded by the final court for deciding question of fact. It is also submitted that the documents Ex. 2 to 6 are the documents relating to another property taken on rent from plaintiff’s brother and same has been handed over to the plaintiff’s brother long ago. The plaintiff wants to take help of those documents relating to other property to evict the defendant from the defendant’s own ancestral property to evict the defendant from the defendant’s own ancestral property. Learned counsel for the respondent, relied upon several judgments of the Hon’ble Supreme Court, Panchugopal Barua and Ors., v. Umesh Chandra Goswami and Ors. (7), and submitted that for exercise of jurisdiction under Section 100 C.P.C., existence of substantial question of law is sin qua non and new case or new plea not supported by pleading or evidence on record can be set up or raised in second appeal. By relying upon the judgment of the Supreme Court reported in Kondiba Dagadu Kadam v. Savitribai Gujar and Ors. (8), learned counsel for the respondent submitted that where a point of law has not been pleaded then litigant should not be allowed to raise such question as substantial question of law in second appeal. It is also submitted that if the question of law termed as substantial question stands already decided by a larger bench of High court or by the Privy Council or by the Federal court or by the Supreme Court, its wrong application to facts of the case should not be termed to be a substantial question law. In addition to above, mere appreciation of the facts and the documentary evidence cannot be held to be raising a substantial question of law. Learned counsel for the respondent by relying upon the judgment of the Hon’ble Supreme Court reported in Hari Singh v. Kanhaiya Lal (9), submitted that finding recorded after appreciation of evidence cannot be set aside by the High Court after reappraisal of evidence and which of the witness should be believed, cannot be ground to interfere in the judgment of the court below while exercising power under Section 100 C.P.C.
19. I considered the above submissions of the learned counsel for the respondent. I do not find any force in the said submissions. Though the Hon’ble Supreme Court found the reasons given in the judgment of this court dated 14.1.2000 as insufficient for interference by the High Court in the finding of fact recorded by the first appellate court. The Hon’ble Supreme Court did not hold that even if appellant proves the finding of the first appellate court as perverse, still High Court should not interfere in the finding recorded by the court below nor Hon’ble the Supreme Court held that in this case there exists no reason for interference in the finding recorded by the first appellate court. If it would have been so, the matter would not have been remanded back to this Court and the suit of the plaintiff would have been dismissed by the Hon’ble Supreme Court itself there and then as nothing would have survived in the suit after holding that relations of landlord and tenant between the parties are not established or nor case is made out for interferences in finding recorded by the first appellate court. In addition to above, the second appeal has already been admitted by this Court as back as more than 20 years ago after formulating substantial questions of law and this court after remand from the Apex Court, after hearing learned counsel for both the parties finds that a more question of law is involved in this appeal, this court is required to decide the question of law framed in this appeal. The respondent way say that in fact substantial question of law framed by this court is in fact do not arise in appeal but after hearing appeal at length this court is of the view that this appeal contains substantial questions of law which requires answer from this court. The Hon’ble Supreme Court set aside the judgment of this court because this court, decided the second appeal on a point, for which no substantial question of law was framed by the High Court. In substance, direction of the Apex Court is that to hear both the parties before farming substantial question of law on the ground of denial of the title and renunciation of character as to tenant by the defendant. This court after hearing both the parties found that said question is also involved in this appeal in addition to the question already framed. To decide the question framed in this appeal, this court is required to examine, which its limitation Under Section 100 CPC, whether the first appellate court was right in reversing the judgment of the trial court or whether any interference of this court is required and if required, whether this court, within the jurisdiction available to this court in second appeal, can interfere. Therefore, this court within it’s limitations, entitled to examine the issue, whether plaintiff proved the relationship of landlord and tenant between the plaintiff and the defendant and this Court is fully conscious that the finding of face recorded by the first appellate court can be interfered only when the finding of face is based on no evidence or resulted in to by misreading of the pleading or evidence, or the finding is perverse or the first appellate court committed error of law in interfering in the finding recorded by the trial court materially affecting the result of the case and in other permissible limits as held by the Hon’ble Supreme Court in various judgment referred above.
20. 1 considered the submissions of the learned counsel for the parties. The substantial question of law No. 1 has been framed bon the basis of pleas of the appellant plaintiff as according to plaintiff, the first appellate court misconstrued the documents Ex.2 to Ex.2 to Ex. 6 and reversed the findings recorded by the trial court. Allegations of misconstruing the evidence including, Ex.2 to Ex.6 which culminated into a perverse judgment which has been delivered by the first appellate court against the appellant plaintiff are the rent receipts by which admittedly rent was paid by the defendant No. 1 to the plaintiff and still the first appellate court held that defendant No. 1 is not tenant at all. To find out whether the first appellate court misread and misconstrued the above documents it will be necessary to examine the documents Ex.2 to Ex.6. The documents exhibit 2 reads (Translated in English) as under:-
“Total rent up to month of February 1968, Rs. 800/- where due in Smt. Chand Kanwar w/o Johari Mal Ji, proprietor Shri Ganesh Timber Mart, out of which Rs. 200/- in cash have been received for rent of the house and now up to month of February, Rs. 600/- are due. Through (Haste) Sri Narendra Kumar s/o Johari Mal Ji Rs. 200/- as mentioned above have been received and now Rs. 600/- are due.
Sd:-K.B.Muttha
30.3.65
Received one copy.
Sd.:- N.K. Johari”
On Ex.2, signature of the plaintiff has been proved by evidence whereas the signature of defendant No. 2 has been admitted by the defendant No. 2. The document Exhibit 2 is not under challenge by any of the parties before the trial court or before first appellant court. Exhibit 3 to 6 are the all original printed rent receipts and on the top of it, name of the plaintiff is printed in big and bold letters in Hindi. These rent receipts contain the name of defendant No. 1 and she has been described as proprietor of M/s. Ganesh Timber Mart who paid the rent of a property situated at Mohalla Jalori Gate. All these rent receipts, Exhibit 3 to 6, bear the signatures of the plaintiff and the defendant No. 2. The defendant No. 1 in her statement on oath before the trial court admitted that she is pardanasheen lady. She also admitted in her statement that whatever had been done by defendant No. 2, had been done on her behalf Therefore, it is clear from the Ex. 2 to Ex. 6 by these documents, rent of one premises situated at Jalori Gate was paid by Defendant No. 1 through defendant No. 2 as proprietor of M/s. Ganesh Timber Mart to plaintiff Kanti Lal and disputed property is admittedly situated in Jalori Gate area. All these fully proved, rather in the light of evidence of Defendant No. 1 and Defendant No. 2, admitted documentary evidence, were discarded by the first appellate court by reading the statement Shanti Lal, plaintiff’s brother, totally out of context. The context was very much clear and available in the pleadings of both the parties as well as also in the evidence of both the parties. The plaintiff in his plaint, at very many places, specifically pleaded that defendants are the tenant and in rejoinder again after reiterating that the defendants are the tenant further made clear that since husband of the plaintiff was in government service he got the business started (not that he took on rent the premises) in the name of his wife defendant No. 1, and defendant No. 2 was looking after the business of the firm M/s. Ganesh Timber Co./Mart. Despite finding mention of name of defendant No. 1’s husband in the rejoinder of the plaintiff for the reason that the got the business started and plaintiff did not use the name of the defendant No. 1’s husband in connection with tenancy, the defendant, who availed the opportunity to file supplementary pleadings, not only not pleaded tenancy of Jaswant Mal, husband of the defendant No. 1 but came out with specific case that business of M/s. Ganesh Timber Co. was running on the plot in dispute and due to increase of business of said firm one plot of plaintiff’s brother situated in the south of this disputed plot was taken on rent by Madan Lal. There is no pleading of any of the parties that Jaswant Mal is or was tenant either of plaintiff or plaintiff’s brother Shanti Lal, either in the plot in dispute or in adjoining plot. Even Jaswant Mal, who appeared as witness of the defendant No. 1, himself has not claimed his tenancy in any of the property nor claimed himself being tenant of plaintiff or of plaintiff’s brother. Despite this, the first appellate court declared Jaswant Mal as a tenant, that too, without deciding crucial points in controversy; whether said Jaswant Mal is tenant of plaintiff in disputed property or is found tenant in the property of the plaintiff’s brother? There is no finding of the first appellate court whether the rent receipts Ex.2 to Ex. 6 and cheques Ex. 23 to 25 are related to the plot in dispute or are relating to plaintiff’s brother’s plot? If the first appellate court would have taken trouble to read the plaint, written statement, rejoinder and reply to the rejoinder, issues and evidence of the defendants and evidence of the said Jaswant Mal himself, the appellate court would have appreciated the context in which plaintiff’s brother Shanti Lal stated that he let out the premises to Jaswant Mal (who merely represented his wife, Def. No. 1 only) and also and could have come to know about real controversy on which both the parties were at issues and the appellate court would not have reversed the well reasoned finding of the trial court Unambiguously, Jaswant Mal was the person who negotiated on behalf of his wife defendant No. 1 with the plaintiff’s brother for taking on rent the premises for the business of M/s. Ganesh Timber Mart Co. work of which was to be looked after by the defendant No. 2, who is son of the defendant No. 1 and Jaswant Mal. Jaswant Mal was in government service, therefore, he could not have business of his own. It is usual and probable, looking to the age of his son, and his wife being pardanasheen lady, he (Jaswant Mal) had negotiated for taking on rent, the premises, with plaintiff’s brother only. Jaswant Mal only negotiated for lease finds support from the fact that defendants even in written statements or even in reply to rejoinder, did not pleaded that the said Jaswant Mal is the tenant in the premises or tenant of plaintiff’s brother. Even this is not the case of the defendants that defendant No. 1 was holding the benami lease for Jaswant Mal nor so was the case of Jaswant Mal in his evidence. Contrary to it, it is admitted case of the defendants and the defendant’s witness Jaswant Mal that these are two properties, for one they claimed their ownership and another, which according to them was taken on rent for the business of the firm M/s. Ganesh Timber Co. It is specific case of the defendants that the defendants No. 1 was in possession and today also she is in possession (till trial of suit, now she is no more alive). Therefore, there was admitted case of the defendants, that defendant No. 1 was tenant and paid the rent. The dispute was whether, she was tenant in plaintiff’s plot or in plaintiff’s brother’s plot? Question of tenancy of Jaswant Mal in any of the plot was not even in imagination of defendants till the evidence of both parties complete which is clear from the tenure of cross examination of the plaintiff and his witnesses by the defendants and from the evidence of the defendants and their witnesses. There is no suggestion in cross examination to the plaintiff that plot was taken on rent by Jaswant Mal. The defendants even after examination-in-chief of PW 3 Shanti Lal, put question to Shanti Lal, in cross examination, suggesting that Shanti Lal’s plot was taken on rent by Madanlal. Defendant even after statement of PW 3 Shanti Lal did not put any question to PW3 Shanti Lal that when he let out plot to Jaswant Mal or to Madan Lal then why suit has been filed against defendants and has not filed the suit against Madan Lal or against Jaswant Mal. Further more is that even after statement of the plaintiff’s brother, the defendants and even Jaswant Mal himself could not muster courage to relinquish their claim of title to the property and even did not put any case in alternative that Jaswant Mal is tenant. In fact, it was nobody’s case that Jaswant Mal took any of the land of anybody on rent or paid rent, or was in possession of any land as tenant or even as owner or as co-sharer or even as successor of late Kan Mal, on which business of the firm Ganesh Timber Co./Mart was running. It will be relevant to mention here that the defendants specifically pleaded that, earlier the land in dispute was in possession of Jaswant Mal’s father and thereafter it is in possession of defendant No. 1 and no pleaded possession of Jaswant Mal in any manner.
21. Let us examine the alleged admission of the witness Shanti Lal on the basis of which finding was recorded, declaring a person tenant in the disputed property, who is neither in possession nor claiming possession of the property nor paid rent and who is claiming ownership of the property in himself. It is true that the plaintiff’s brother Shanti Lal, who is claiming ownership of the property in himself. It is true that the plaintiff’s brother Shanti Lal, who let out the plot, stated on oath that disputed plot was taken on rent by Jaswant Mal from him on monthly rent of Rs. 42/- and Jaswant Mal said that he was in government service, therefore, business will be run in the name of his wife Chand Kumari (defendant No. 1) and his son Narendra Kumar (defendant No. 2) will look after the business. If evidence referred above, is read as such, it is admission of fact of taking on rent, the plot of Shanti Lal (plaintiff’s brother), by Jaswant Mal from said Shanti Lal but in fact above evidence cannot be read as admission of any such fact. How the first appellate court read the evidence of the PW-3 Shanti Lal out of context it clear, if the pleading of both the parties are kept in mind while critically analysing the evidence of the PW-3 Shanti Lal and Evidence of PW-1 plaintiff himself. The plaintiff repeatedly (Written statement and in rejoinder), pleaded that defendants are the tenants. The defendant No. 1’s husband Jaswant Mal was in Government service and he wanted to do the business, therefore, the suit premises was taken on rent and business was started. The defendant No. 1 and Jaswant Mal both admitted there facts and defendant No. 1 herself in her statement on oath categorically admitted that “we” took on rent portion of plot of Shanti Kumar to run sawmill. The word used “We” in the statement of DW-1 unambiguously included the name of her and may include name of her partners of M/s. Ganesh Timber Co. took the portion of plot of Shanti Lal. It cannot include name of her husband. Though the defendant pleaded that plot of Shanti Lal was not taken on rent by Madan Lal but said plea has been not pressed then only conclusion can be drawn is that the defendant No. 1 took on rent the plot in dispute. Jaswant Mal nowhere comes in picture as tenant because of the reason that the himself admitted that he is not tenant and if the evidence of Shanti Lal is read keeping in mind the Section 6 and 7 of the Evidence Act, which says that facts which do not in issue are so connected with the fact in issue as to form part of the same transaction are relevant, whether they occurred at the same time and place or at different time and places and further says that facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue, or which constitute the state of things under which they happened or which afforded an opportunity of there occurrence or transaction are relevant facts. The first appellate court without taking into account the background in which the events took place catch the words from the statement of Shanti Lal. For appreciation of evidence if context is ignored, it may result into blunders like which happened in this case resulting into declaring plaintiff landlord and Jaswant Mal tenant despite the fact that plaintiff says defendant No. 1 is tenant and defendant No. 1 says that the property in dispute is her ancestral and Jaswant Mal, her husband nowhere claims that he is tenant and defendant No. 1 herself is not saying that Jaswant Mal is tenant! The first appellate court has no grip over the facts of the case as the first appellate court could not keep in mind that Jaswant Mal, who was not eligible to do the business himself was husband of a ‘Pardanasheen’ lady, negotiated for taking on tent the premises only. After the negotiation completed the defendant No. 1 alone remained in possession and she alone paid the rent of the premises and business was conducted by defendant No. 1 herself thorough her son defendant No. 2 Despite these facts, the first appellate court declared Jaswant Mal as tenant merely on the basis of would of mouth of Shanti Lal which were read out of the context. An admission of non existent fact neither proves a fact nor can it be even termed as evidence. Evidence, evidencing existence of no-existent fact is not even evidence. It is only an illusion. A fact may have evidence or even may not have evidence still fact survives. Without fact being in existence, neither evidence can take birth nor such evidence can survive, rather cannot be permitted to survive. Evidence can be, only to prove the fact which are in existence or was in existence and no evidence, whosoever it may appears to be strong, can give both to a evidence, whosoever it may appears to be strong, can give birth to a fact which in fact is not in existence or was not is existence. Heaviest duty is cast upon the courts to find out the true fact. Creating a fact with the help of evidence when in face, said fact never existed is a fraud only. In this case holding Jaswant Mal as tenant is nothing but holding a fact in existence which never existed. Such a finding being perverse, cannot be allowed to stand by any stretch of imagination.
22. After going through entire record and entire evidence, this Court has no hesitation in declaring that the alleged admission of witness PW3 Shanti Lal is, not an admission at all, admitting Jaswant Mal as tenant in the or of the property of plaintiff or admitting Jaswant Mal to be a tenant in the or of the property of himself (Shanti Lal). The first appellate court by ignoring the pleadings of both the parties and without understanding the controversy involved in the case, read the evidence totally out of context and treated the statement of the PW 3 Shanti Lal, admitting Jaswant Mal as tenant and declared existence of a non- existent fact and created a tenant, Jaswant Mal in a property for which he never paid rent nor he is claiming himself to be tenant and for a property which is not in his possession and not only this but he is claiming his title in the property and further more in such in which he (Jaswant Mal) himself is not party and parties in the suit are his wife and son whose admitted case is that the said Jaswant Mal was never the tenant in any of the property, may it be of plaintiff or it may be of plaintiff’s brother Shanti Lal, and only defendant No. 1, Jaswant Mal’s wife is in exclusive possession and was running her business and Jaswant Mal’s son defendant No. 2 was looking after business of the defendant No. 1’s business only.
23. Hence, substantial question of law No. 1 is decided in favour of appellant and it is held that the first appellate court reversed the judgment of the trial court by misconstruing the evidence on record, oral as well as documentary evidence Ex.2 to Ex. 6 and further by misconstruing the dealings of the parties. The finding of the first appellate court that Jaswant Mal is the tenant in the disputed property is liable to be set aside on this count alone.
24. Respondent’s argument that defendant though has neither pleaded nor led any evidence that Jaswant Mal is the tenant in the disputed property or was tenant in the Shanti Lal’s property but if court has decided that Jaswant Mal is tenant, the first appellate court has only decided question of fact well within it’s jurisdiction as court is not bound to accept one of the case set up either by plaintiff or by defendant only. The court can arrive at a conclusion entirely different from the case set up by both parties to the suit. Therefore, the defendant can support the jurisdiction of the court below by which suit of the plaintiff was dismissed on the basis of a finding recorded by the court below though that was not the case of the defendant, It is true that duty of the court is to find out truth and it is not necessary for the court to choose case, one out of two. The court may find case of one true, may declare one is half true or both cases are half true or even may declare that both are wrong. The said proposition was the view of this court in the case Smt. Chaman v. Mohd. Ayub (10), decided on 01.09.2003. Above proposition has no application to the facts of this case because this court has reached to the conclusion that finding recorded by the first appellate court vitiated as the first appellate court recorded finding by misconstruing the documentary evidence and misreading of pleadings and reading the evidence totally out of context. Secondly, I find substance in the argument of the learned counsel for the appellant that, respondents in the facts of this case, cannot take a plea which was not only, neither her case anywhere in pleading nor in evidence, rather it is divergently opposite to her own case set up in her pleadings. It is clear from the pleading that defendant admitted her exclusive possession over the plot in dispute and from pleadings of the defendants, only inference can be drawn is that Jaswant Mal was never in possession of the plot. Neither the defendant sought to withdraw her said admission nor there exists any reason to permit the defendant from withdrawing her unambiguous admission of her exclusive possession. From the entire case of defendant in the pleadings and evidence oral as well as documentary, the defendant tried to prove her tenancy over the plot, adjoining to the plot in dispute, particularly with the help of admitted documents Ex.2 to Ex.6 which are relating to plaintiff and the defendants only. The support to finding of the court below by the defendant is only a desperate, rather absolutely mala fide attempt to deprive plaintiff from getting the possession of the plot in dispute Respondent while supporting finding of the court below forget that there is insurmountable problem is her own admissions made in pleadings, her own statement given on oath in this case itself, her own son’s written statement filed in this very case, her son’s statement on oath given in support of her own case and statement of her husband produced by she herself as her own witness. Admittedly, there is no evidence on record to prove tenancy of said Jaswant Mal.
25. Interestingly, from entire judgment of the first appellate court it cannot be found that whether the court found Jaswant Mal, tenant of Shanti Lal or of plaintiff? Whether Jaswant Mal was declared tenant in the property in dispute or in adjoining property which is of Shanti Lal not of plaintiff. Whereas the trial court after full appreciation of the oral as well as documentary evidence specifically held that defendant No. 1 paid rent to the plaintiff by Ex.2 to Ex.6 and DW 4 Narendra, defendant himself admitted that by these rent receipt Ex.2 to Ex.6 amount (of rent) of plaintiff was paid and further found that the property of Shanti Lal was in possession of other persons and could not have been in possession of other persons and could not have been in possession of the defendant at relevant time. In addition to above, the trial court held that the defendant paid the rent by cheque to the plaintiff even the date on which they are alleging that they handed over the possession of the plot to the defendant’s brother. The first appellate court, without considering and without reversing above findings, reversed the judgment of the trial court. After considering entire record, 1 have no hesitation in holding that the judgment of the first appellate court suffers from patent illegalities.
26. Further glaring illegality committed by the first appellate court is that the first appellate court accepted the oral evidence contradicting the documentary evidence. The plaintiff produced and proved rent receipt Ex. 2 to Ex. 6 and cheques Ex.22 to Ex. 25, more is that defendants admitted that rent receipts and payment by these receipts and cheques to the plaintiff PW 3 Shanti Lal’s oral statement (by reading in isolation of fact of the case and other evidence) were fond by the first appellate court, sufficient for discarding admitted rent receipt Ex. 2 to Ex. 6 and cheques Ex. 22 to Ex. 25. Hence, the first appellate court committed illegality reading out, the oral evidence, out of context, contradicting proved and admitted documentary evidence so far as relationship of landlord and tenant between plaintiff and defendant No. 1 is concerned.
27. Next is that the first appellate court, under an impression that since the case of tenancy of Narendra Kumar was not accepted though he signed all the receipts he cannot be treated as tenant even if rent was paid by and on her own account. It is strange, that plaintiff says that the rent receipts were issued by him and it was counter signed by Narendra Kumar son of the defendant No. 1 and defendant No. 1 herself admitted that whatever has been done by Narendra Kumar in relation to the transaction of firm M/s. Ganesh Timber Co. has been done by Narendra Kumar for and on behalf of defendant No. 1 Chand Kumari and thereby, the defendant No. 1 herself admitted that the rent of the premises was paid by the defendant No. 1 herself though, through defendant No. 2, still she cannot be treated tenant of the plaintiff! As agent paying rent, on behalf of his or her principal, himself can not become tenant. The definition of tenant given in Sub-clause (a) of Clause (vii) of Sec. 3 of the Rajasthan Premises (Control of Rent and Eviction), Act, 1950 was not taken in to consideration by the First appellate court. Who is tenant a defined in said provision- the person by whom or on whose account or behalf rent would be payable is a tenant. Admittedly defendant No. 2 Narendra Kumar paid the rent of behalf of Smt. Chand Kumari defendant No. 1, therefore he (Narendra Kumar) was rightly held not to be tenant of plaintiff as neither he was liable to pay the rent nor the rent was paid on his account. But admittedly rent was paid on behalf of and on account of defendant No. 1 and it is not body’s case that defendant No. 1 paid rent on behalf of or on account of Jaswant Mal. The first appellate court under wrong assumption of law applied same principle in this case, upon the defendant No. 1 who had paid rent on her own account and not paid rent on behalf of her husband Jaswant Mal. The finding is unsustainable in eye of law because the first appellate court even could not notice different status of principal (Smt. Chand Kumari) and her agent (Narendra Kumar) and further failed to understand the basic principle of law that agent works on behalf of his principal and cannot claim accrual of right in himself because of the work done by him for and on behalf on his principal. Not specifically but by implication, the first appellate court assumed the defendant No. 1 agent of Jaswant Mal, which is nobody’s case. Therefore, finding of the first appellate court that Chand Kumari cannot be accepted as tenant of the plaintiff cannot be allowed to stand.
28. Apart from above, payment of rent to the plaintiff’s brother on earlier occasions when plaintiff was not residing at Jodhpur followed by payment of rent directly to the plaintiff through Ex. 2 to Ex. 6 supports the case of plaintiff. There is no answer with the defendant for may questions. Whey the rent was paid to plaintiff particularly when admitted case of both the parties is that at the time of letting of the premises, the plaintiff was not living at Jodhpur. Why the defendant accepted printed rent receipts containing name of the plaintiff, in big bold letters on the top of the receipts, from plaintiff? Why defendant No. 2 on behalf of defendant No. 1 settled the rent account with plaintiff and paid part of the arrears of the rent and admitted defendant No. 1’s liability of balance rent amount are the question remained unanswered from defendants, if the defendant did not took any premises of the plaintiff on rent. Therefore, these rent receipt Ex.2 to Ex.6 ruled out any possibility of absence of relation of landlord and tenant between the plaintiff and the defendant No. 1. Ex. 2 to Ex. 6 proves beyond any doubt that defendant took the plot of plaintiff on rent and not of plaintiff’s brother.
29. Apart from misconstruing the documents and pleading, the first appellate court failed to consider the admission of the defendant No. 1 made in her statement on oath before the trial court. The defendant admitted that “we” took portion of plot of Shanti Kumar on rent for establishing saw-mill by this, she admitted her to tenant. This admission of the defendant No. 1 was totally ignored by the court below. If Jaswant Mal was the tenant of the plaintiff’s brother and in the plaintiff’s brother’s plot and defendant No. 1 was in possession of the plot in dispute as successor in interest or as co-sharer or got possession of the plot in dispute from her father in law, Late Kan Mal then which plot she took on rent and for which plot she paid rent by Ex. 2 to Ex. 6 and by Ex. 22 to Ex. 25? The appellate court did not apply it’s mind to these facts and ignored the Ex. 22 to Ex. 25 also.
30. Since Smt. Chand Kumari has been held to be tenant in view of the evidence available on record, now question remains is that whether these rent receipts relates to the plot in dispute or relate to plaintiff’s brother’s plot which is said to be situated near, in sought of the plot in dispute. The defendant No. 1’s defence is that these rent receipts (Ex.2 to Ex.6), and cheques are relating to the rented premises of plaintiff’s brother Shanti Lal. The trial court, in view of the statements of the plaintiff’s witnesses, Shri Kishan, Jagdish Narayan and Uttam Singh is tenant in that plot since 1967 and was tenant when his statement was recorded, and defendant failed to prove possession of late Kan Mal over the plot in dispute, therefore, held that the defendant could not have occupied Shanti Kumar’s plot from Nov. 1962 to the year 1968. The trial court further held that business of the M/s. Ganesh Timber Co. was through running prior to the year 1962 but was not on the plot in dispute. The trial court further found that defendant herself pleaded that she took the plot of Shanti Kumar in Nov. 1962 where as plaintiff produced cheque dated 3rd July 1962, defendant claimed that rent was increased from Rs. 23 to Rs. 42/-1 Jan. 1965 whereas the cheque Ex. 23 proves the case of the plaintiff that even in 1963 rent was Rs. 42/- as pleaded by the plaintiff for his plot. All these findings were ignored by the first appellate court only under absolutely wrong assumption that Jaswant Mal is tenant. Since, according to defendants also, plaintiff’s brother Shanti Lal’s plot is not the disputed plot and Shanti Lal’s plot is situated in the south of plot in dispute and since rent receipts relates to the plaintiff’s plot only, and in dispute and further failed in proving that she or M/s Ganesh Timber Mart Co. was in possession of the plaintiff’s brother plot, therefore, it is clearly established by the appellant that the first appellate court drawn wrong inference from the proved and admitted evidence and committed grave error of law in reversing the findings of the trial court. The first appellate court instead of finding out whether these documents relates to a different plot and to different person, other than the plaintiff declared that even if rent has been paid by these rent receipts and cheques by the defendant still defendant No. 1 is not tenant, is only due to misconstruing documentary evidence. The reasoning given by the trial court, holding that defendant is tenant of the plaintiff and in the plot in dispute are based on facts and evidence and deserves to be upheld.
31. The first appellate court without reversing finding of the trial court on material points which goes to the root of the mater reversed the decree passed by the trial court. It is true that appellate court in case need not to reverse each and every line of reasoning given by the subordinate court but in the case, where without reversing the finding of the lower court on some or any of the point, reversal of lower court’s decision results into contradictory findings or in cases where without reversal of such point in controversy reversal can not be justified, then the appellate court can not reverse the judgment of the lower court without reversing the finding of the lower court on such points. Here in this case the first appellate court without reversing the finding of the trial court on material points involved in issue No. 1 reversed the decision of the trial court on issue No. 1 and Jaswant Mal is tenant in the suit property which in fact nobody’s case, rather contrary to case pleaded by both the parties and against the evidence available on record. The findings of the trial court which were not reversed and even not considered are many as mentioned in preceding paras.
32. The finding on issue No. 1 recorded by the first appellate court is self-contradictory and cannot be allowed to stand in view of the findings recorded by the first appellate court on issue No. 2. The first appellate court declared Jaswant Mal as tenant in the suit premises while deciding issue No. 1 and upheld the finding of the issue No. 2 of the trial court wherein the trial court held that the defendant No. 1 has committed default in payment of the rent of suit premises. The first appellate court further upheld that finding of the trial court on issue No. 7 and held that in view of Ex. 5 and Ex. 6 the amount was paid by the defendant and, therefore, suit of the plaintiff for recovery of the arrears of rent Rs. 500/- is within limitation and the first appellate court upheld the finding of the trial court that the defendant lastly paid the rent @ Rs. 50/- per month and the defendant failed to prove that plaintiff took the premises on rent having rent of Rs. 23/- per month. Therefore, the defendant failed to prove that initial rent was Rs. 23/- per month, hence, the defendants are not entitled for reduction in the rent. The finding on issue No. 10 proved the case of the plaintiff about the tenancy of defendant No. 1 in the suit premises with initial rent of Rs. 42/- per months as pleaded by the plaintiff and negatives the plea of the defendant that defendant took the plot of Shanti Kumar on rent of Rs. 23/- per months. The decision on issue No. 1 and decision on issues No. 7 and 10 are diametrically opposite to each other. Therefore, also judgment of the first appellate court is liable to be set aside.
33. The finding is further perverse because of the fact that the finding is not only contrary to admissions a mentioned above, but even self contradictory and absolutely improbable in view of the even pleadings and the evidence of the defendants because even during the course of arguments it was virtually impossible for the learned counsel for the respondent defendant No. 1 to admit on behalf of the defendant No. 1, that Jaswant Mal is tenant in the property in dispute. Because, admitting Jaswant Mal as tenant in the disputed property will go against the interest of not only pleadings of the both the defendants, who are the wife and son of Jaswant Mal, but would go against the interest of Jaswant Mal also as the defendants, including Jaswant Mal are claiming their title over the land in dispute. In this situation, learned counsel for the respondent took help of the plea that defendant No. 1 can get the suit dismissed by showing that she is not tenant in the property in dispute and she is not under obligation to show who else is tenant or who else is owner of the property in dispute. According to learned counsel for the respondent, the respondent can take help of the finding whereby it has been held that defendant No. 1 is not tenant in the disputed property and there exists no relationship of landlord and tenant between the plaintiff and defendant. Said argument of the learned counsel for the respondent does not survive as this court has found the finding of the first appeared court on issue No. 1 absolutely perverse and up held that finding of the trial court that defendant No. 1 is the tenant in the disputed property. At this juncture it will be relevant to mention here that in case any party to litigation chooses not to disclose the full facts then he can do so at his own risk. The party who did not disclose the full facts then he can do so at his won risk. The party who did not disclose the complete facts has no right to say after the trial that he had something with him, which would if have been shown by him that may have good answer to the point raised by the other party. Question of title was not relevant in this suit still to prove old possession of the defendant’s ancestors and thereafter, of the defendants, facts relating to title of the defendants was collaterally relevant. Here in this case, if the defendant has chosen not to disclose how title vested in the ancestors of the defendant’s husband, may it be actual title or derivative title or even possessory title and how and when said title was acquired then she can blame herself only. In the facts and circumstances of this case, non-discloser of above relevant facts only indicates towards correctness of the plaintiff’s case. If the court below would have examined the preponderance of the probabilities, the court below would have accepted more probable that person in government service will not take risk of taking premises on rent for himself as well as in his name and the court below would not have disturbed the reasoning given by the trial court that the defendant No. 1’s husband merely negotiated on behalf of his wife to take on rent the premises and in this context, the plaintiff’s witness Shanti Lal referred the name of the defendant’s husband and his (Jaswant Mal) name in face represented defendant No. 1 only.
34. In view of above discussion, substantial question of law No. 1 is decided in favour of the appellant and it is held that the first appellate court misconstrued the evidence, including the Ex. 2 to Ex. 6 apart from other evidence which vitiates the finding of the fist appellate court on point of relationship between plaintiff and defendant and finding recorded by the trial court is upheld. There is no dispute in view of the statement of the statement of DW 1 and in view of the statement of the PW 3 Shanti Lal, Narendra Kumar defendant No. 2 paid the rent to the plaintiff as agent of the defendant No. 1 and the trial court rightly dismissed the suit against the defendant and this fact has no adverse effect on the plaintiff suit.
35. Learned counsel for the appellant submitted that plaintiff is owner of the property and produced the Patta of the plot in dispute and, therefore, the court should have decreed the suit of the plaintiff on the basis of plaintiff’s title as defendant, who has not no right to maintain his possession and also has no right to resist the plaintiff’s suit for possession as the defendant has no even setup his any case of adverse possession. Learned counsel for the appellant relied upon the Full Bench decision of this Court given in the case of Smt. Pushpa Sharma v. Gopal Lal Rawat (supra). In this case, the plaintiff filed the suit for eviction against defendant alleging that defendant is the tenant. The defendant denied the tenancy as well as ownership of the plaintiff. The defendant also set up a plea that the herself was the owner of the suit premises. The controversy raised in the case is that when a suit is filed for eviction on the basis of relationship of landlord and tenant on the grounds provided under Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 can a decree for possession be granted on the basis of ownership and title of the plaintiff, when the relationship of landlord and tenant is not held established between the parties? Ultimately said question was referred to the full bench of this Court. This Court held that:-
“(1) In a suit based on the relationship between the landlord and tenant, making prayer for eviction on the grounds set forth under Section 13 of the Rajasthan Premises (Control of Rent and eviction) Act, 1950, a decree for possession can be granted in favour of the plaintiff on the basis of his title.
(2) When any issue is framed on the basis of allegations of title of the plaintiff and the defendant assert is his own title and denies the plaintiff’s title and both the parties lead evidence without raising any objection, question of prejudice caused to the defendant may be seen if decree for possession is to be granted on proof of title of the plaintiff.”
After holding as above, the Full Court further held that, as a general rule where a suit is filed on the basis of tenancy and relationship of landlord and tenant then the suit should be decided on the basis of tenancy alone, and it should not be converted into a title suit.
36. It will be relevant to mention here that an issue (No. 6) was framed by the trial court on the basis of the plea taken by the defendants in their written statement which is whether the suit property is ancestral property of the defendants and the plaintiff has no title over the suit property? The defendants submitted an application and sought deletion of issue No. 6 on the ground that in a suit for eviction under the provisions of the Rent Control Act, question of title cannot be decided. The counsel for the plaintiff also agreed to the same proposition which was taken note of by the trial court in its order dated 14.9.1973. The trial court after taking note of the above legal proposition as agreed by both the parties, recorded its own opinion and held that though question of title cannot be gone into in the present suit but since defendant raised a plea about the property being his ancestral, the issue cannot be deleted (at this stage) and if defendant considers the issue redundant then he must first amend the pleading and thereafter he may make application. The trial court with above reasoning dismissed the application for deletion of issue No. 6. It appears from the judgment of the trial court that the defendant under impression that the issue of title cannot be gone into, did not press the issue No. 6, therefore, the trial court instead of deciding the question of title, cancelled the issue No. 6 itself. In view of the above, it is clear that both the parties did not choose to proceed for determination of the title of the property, therefore, even in view of the decision of the Full Bench delivered in the case of Pushpa Sharma’s case (supra), the plaintiff cannot be permitted now in second appeal to seek relief on the basis of his title because of the reason that Full Court itself held that general rule is that where a suit is filed on the basis of tenancy and the relationship of landlord and tenant, then such suit should be decided on the basis of tenancy alone and it should not be converted into a title suit. The plaintiff-appellant’s case does not fall in the exception to the general rule as answered by the. Full Bench of this Court in the reference, therefore, the substantial question No. 2 is decided against the appellant-plaintiff.
37. Now question arises is whether plaintiff-appellant is entitled for decree for eviction against the defendant on the ground that the defendant has denied the title of the plaintiff which is the ground for eviction under Section 13(1)(f) of the Act of 1950?
38. So far as denial of title of the property of the plaintiff by the defendant is concerned, it is unequivocal and unambiguous denial. The trial court held that defendant No. 1 is tenant in the property in dispute and plaintiff is the landlord of the defendant No. 1. The finding of the trial court has been upheld by this Court. The denial of title of the plaintiff for the suit premises has been repeated by the defendant not only in the reply to rejoinder filed by the defendant after denying the title in the written statement but it continued in that statement of the defendant and thereafter, in first appeal and during entire period of about more than 30 years and during course of arguments before this Court. The defendant not only denied the title of the plaintiff but claimed the title of the property in herself. The plaintiff-appellant sought decree for eviction against the defendant on the ground of such denial and decree was granted by this Court earlier on 14.1.2000 which was set aside by the Hon’ble Supreme Court on the ground of not framing the substantial question of law on this point. This Court in pursuance of the direction of the Hon’ble Supreme Court given in Civil Appeal No. 7911/2001 dated 31.10.2001, after hearing both the parties, framed the substantial question of law referred above. Both the parties vehemently argued on this issue also.
39. Learned counsel for the appellant relied upon catena of authorities of the Court wherein it has been held that where a tenant repudiate the title of the landlord before the suit was filed but did not take the said plea in the written statement, still the tenant is liable for eviction (Mool Chand’s case (supra), this Court held that even partial denial of title of the landlord is sufficient for eviction of the tenant (Heera Nand’s case (supra). Learned counsel for the appellant also relied upon the Division Bench judgment of this Court delivered in the case of Lalu Narayan v. Ratan Chand Lunia (supra), wherein Division Bench of this Court held that landlord can seek eviction of tenant on the ground mentioned in Section 13(1)(f) in the absence of specific pleading and issue if parties went to trial on that ground when no real prejudice is shown to have been caused to the tenant. The same view was taken in the case of Shiv Narayan alias Saon (supra) by the Single Bench of this Court by following the Full Bench decision (Lalu Narayan’s case (supra)) and held that decree of eviction can be passed even if there was no plea in plaint and no specific issue was framed on the point of denial of title. In view of the above legal position and the binding decisions of this Court, the appellant-plaintiff is entitled for the decree for eviction against the defendant tenant on the ground of denial of title of the plaintiff and because of renunciation of character as of tenant by the defendant. The reasons for decree can be gathered from the facts and reasons discussed above. The defendant took the premises on rent and paid the rent, initially to plaintiff’s brother who received the rent on behalf of the plaintiff and thereafter the rent was paid by the defendant No. 1 to plaintiff directly and admitted the plaintiff to be his landlord, therefore, the defendant is estopped from challenging the title of the plaintiff and also was not entitled to renounce his character as of tenant during currency of the tenancy. The denial of title and renunciation of the character of the tenant is unambiguous, clear and without any reservation and it continued even after when the plaintiff sought decree against the respondent-tenant on the said grounds falling under Section 13(1)(f) of the Act of 1950 and the conduct of the respondent-defendant tenant has not been condoned by the plaintiff-appellant. The Division Bench of this Court in Lalu Narayan’s case and Single Bench of this court in Shiv Narayan’s case held that decree for eviction can be passed even if there is no plea in the plaint and no specific issue was framed on the point of denial of title of the plaintiff-landlord, therefore, the plaintiff is entitled for the decree for eviction against the defendant and the issue framed by this court on 25.8.2003 is decided in favour of the appellant-plaintiff.
40. Consequentially, the appeal of the appellant is allowed throughout. The judgment and the decree of the first appellate court dated 5.4.1980 is set aside and the decree of the trial court dated 24.7.1978 is upheld.