MANISH SHIVHARE Vs. RANVEER SINGH PARIHAR(DEAD)

JUDGEMENT

(1.) The instant second appeal u/S. 100 C.P.C. assails the finding of reversal whereby the first appellate court has passed a decree in favour of the plaintiff/landlord of eviction on the ground of bonafide need of the son of the deceased landlord for doing business, after reversing the judgment and decree of the trial Court dismissing the suit of the land lord.

(2.) Learned counsel for the appellant/tenant by referring to various paragraphs of the impugned judgment of the first appellate court and also certain parts of the pleadings especially paragraph Nos. 24, 25, 26 and 39 of testimony of Ranveer Singh (landlord) (PW-1) contends that the suit was originally filed raising the bonafide need of the father Ranveer Singh (PW-1) who died during pendency of the first appeal. It is also contended that there was incongruity between the statutory notice terminating the tenancy and seeking eviction on one hand and the plaint on the other, to the extent that the notice assigned the bonafide need of the son to do business whereas the plaint assigned the bonafide need of the father as well as son for seeking eviction. It is also further submitted that important factum of bonafide need and absence of any alternative suitable accommodation within the territorial limits of the town of Gwalior could not be established by the landlord. Reliance is placed by the learned counsel for the appellant/tenant on the decision of Apex Court in the case of Santosh Hazari Vs. Purushottam Tiwari reported in (2001) 3 SCC 179 for emphasizing the principles to be followed while adjudicating second appeal in a case of reversal. The same authority is also relied upon for reiterating the principles of law for framing substantial question of law u/S. 100 C.P.C.. It is submitted that the first appellate court while reversing the judgment of the trial court must keep in mind two principles of law that in case of availability of findings of fact based on conflicting evidence, the same must weigh in the mind of the appellate court and if the appraisal of evidence by the trial court suffers from material irregularity or is based on inadmissible evidence or on conjuncture and surmises, the first appellate court ought to interfere.

(3.) Learned counsel for the respondent/landlord on the other hand referring to Para 12 of the judgment of the trial Court and as well as of the appellate court submits that the plaint map is not in accordance with the statutory requirement under Order 7 Rule 3 CPC. It is further submitted that the family settlement Ex.P-6 based on which the suit shop came to devolve upon the respondent/landlord, bestowed only two shops in favour of the landlord one of which is the suit shop and other is occupied by Rajendra Gupta and therefore, the trial Court rightly came to the conclusion that the respondent/landlord has no other alternative suitable accommodation within the territorial limits of the town of Gwalior. It is further submitted that no substantial question of law arises in the present case since the reversal by the appellate court was on the findings of fact which are based on cogent evidence on record.