KULDIP RAJ Vs. PAWAN KUMAR

JUDGEMENT

(1.) The present second appeal has been filed by the tenant against the concurrent findings of fact recorded by the Courts below, whereby the suit filed by the predecessor-in- interest of the respondent, seeking eviction of the appellant was decreed. Present appeal was admitted for consideration of the following substantial question of law:- "Whether the entire evidence has not been properly appreciated as required in terms of Order 41 Rule 31 CPC "

(2.) Learned counsel for the appellant/tenant submitted that suit was filed by the father of the respondent, seeking eviction of the appellant merely on two grounds, namely, personal necessity and reconstruction. It was claimed that suit property had been purchased by the deceased-Krishan Chander for settling his son, namely, Pawan Kumar, who is now representing the deceased-Krishan Chander. The claim made by the plaintiff regarding bonafide need of the property was specifically denied in the written statement filed, to which no replication was filed by the plaintiff. Though number of issues were framed, however, core issue required to be considered by the Court below was regarding personal necessity of the plaintiff and requirement of shop for reconstruction. It was clamed by the respondent that shop in question is adjoiing to their other shop and they wanted to reconstruct the same and add to the existing shop for expansion of business for requirement of the same especially for Pawan Kumar and he had to be settled. The size of the shop is said to be 9' x 25? feet or 10 4% to 24 ( two different dimensions available on record). The claim that the son for whose necessity the shop in question was sought to be vacated was dependant on the plaintiff, was found to be contrary to record, as he was partner in the firm. The Partnership Deed was executed on 01.04.1992. Suit property had been purchased by the deceased-plaintiff on 25.02.1991. The plaintiff was evasive on many of the issues as even the interrogatories were not properly responded to. But this fact has been ignored by both the courts below. Whatever had been admitted by the plaintiff in the interrogatories deserves to be relied upon in evidence, as the same amounts to admission. However, the courts below had totally ignored that part of the evidence. There is no evidence produced on record, which has worth reliance, showing that the property is in such a dilapidated condition that it required reconstruction. It was submitted that the courts below had not properly appreciated the entire evidence produced on record by the appellant. The judgment and decrees of both the courts below deserve to be set aside and the matter be remitted back for reconsideration.

(3.) On the other hand, learned counsel for the respondent submitted that the scope of interference in a second appeal by the High Court is very limited. The question of law got framed by the appellant is academic. Nothing specific has been referred to by him for the court to reach to a conclusion that any of the finding recorded is perverse. Once the courts below have taken a possible view on appreciation of entire evidence, merely because a different view is possible on re-appreciation of evidence, interference in the judgment and decrees of the courts below will not be called for. All the issues framed by the trial court have been considered with reference to the evidence produced on record. Merely because the appellant has referred to some words recorded or said here and there will not be enough to reach to a conclusion that the evidence produced on record has not been appreciated. In fact, the shop in question had been purchased by the deceased- Krishan Chander with a view to settle his son in a separate business. He had six sons and as a head of the family, it was his responsibility to settle them after their education was complete. There was no requirement to prove his family details. Merely because he had been added as a partner in a firm prior to filing of suit for eviction, will not mean that he was settled in business mdependently. In fact, the idea was to make him responsible and learn the techniques so that he is able to conduct his business independently. Separate business for Pawan Kumar was required, as the brothers were not pulling on well. They were living separately and even the respondent had constricted his house separately after the death of the father.