[2025:RJ-JP:13545] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 247/2022 Dharamchand S/o Roopchand, Aged About 56 Years, R/o Chohatti Bazar Kasba Niwai, Tehsil Niwai, District Tonk. ----Appellant-Defendant Versus 1. Layak Ali S/o Shaukat Ali, R/o Chohatti Bazar, Kasba Niwai, District Tonk. 2. Mohammed Zahid S/o Shaukat Ali, R/o Chohatti Bazar, Kasba Niwai, District Tonk. 3. Mus. Rashida Bano D/o Shaukat Ali W/o Mohammed Rafiq, R/o Neema, District Neem, Madhya Pradesh, At Present Case Chohatti Bazar, Niwai, District Tonk. ...Respondents-Plaintiffs 4. Mahaveer Prasad S/o Roopchand, R/o Bada Bazar, Near Chaturbhuj Mandir, Niwai, Tehsil Niwai, District Tonk (Since Deceased) Through Lrs.- 4/1. Smt. Nayantara W/o Mahaveer Prasad 4/2. Tejmal S/o Mahaveer Prasad 4/3. Pawan S/o Mahaveer Prasad 4/4. Manish S/o Mahaveer Prasad All R/o Near Agarwal Dharamshala, Mayela Bagh, Niwai, Tehsil Niwai, District Tonk. 4/5. Renu W/o Sanjay D/o Mahaveer Prasad, R/o Transport Nagar, Kota. ----Proforma Respondents-defendants For Appellant(s) : Mr. Mohd. Adil For Respondent(s) : Mr. Sandeep Jain with Mr. Amit Sharma HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Judgment 15/01/2025 1. The instant second appeal is preferred by the appellant- defendant aggrieved from dismissal of civil regular appeal [2025:RJ-JP:13545] (2 of 13) [CSA-247/2022] No.40/2021 (4/2018) by learned Additional District Judge, Newai, District Tonk on 25.07.2022 affirming the judgment and decree dated 04.12.2017 in Civil Suit No.83/2004 (83/2002) passed by Senior Civil Judge, Newai, District Tonk. 2. The respondents-plaintiffs have filed a suit for eviction and recovery of rent against tenant Mahaveer Prasad and Dharamchand and same was decreed on 04.12.2017. The defendants have preferred an appeal against decree of eviction and arrears of rent, which was dismissed by the Appellate Court. 3. Learned counsel appearing on behalf of the appellant has submitted that there was no relation of landlord and tenant but the courts below without determining the relationship of landlord and tenant has passed an order of eviction against the appellants. He further submitted that the suit property was rented by Zahoor Ali and defendants were tenant of Zahoor Ali. He submitted that Zahoor Ali has executed a Will in favour of his son Shokat Ali but before the rights crystallized under the Will, Shokat Ali has expired during lifetime of Zahoor Ali. He also referred the Muslim Personal Law and submitted that no right whatsoever was acquired by Layak Ali and other legal heirs of Shokat Ali. He further submitted that the facts on record and supporting evidence clearly indicated that there was a dispute between legal representatives of Zahoor Ali and the legal heirs of Shokat Ali have no right to file a suit for eviction against the appellant-defendant. He also referred a suit filed in 1998 by Zahoor Ali and submitted that all these issues were ignored by learned trial Court and the Appellate Court. He further referred the objection of defendants on Ex.6 and submitted [2025:RJ-JP:13545] (3 of 13) [CSA-247/2022] that Ex.6 is a forged document and the courts below have committed serious error while placing a reliance upon this document. He also referred the evidence and also the facts narrated by plaintiff and submitted that without any right, a suit for eviction was instituted, which has to be dismissed but a decree was passed on erroneous interpretation of evidence. 4. Learned counsel has further referred judgments in case of Yadarao Dajiba Shrawane (dead) by Lrs. Vs. Nanilal Harakchand Shah (dead) and Ors : (2002) 6 SCC 404, Bismillah Be (Dead) By LRs vs Majeed Shah : (2017) 2 SCC 274 and submitted that the defendants have not challenged the title of Zahoor Ali rather they have challenged a derivative title claimed by plaintiffs and they are legally entitled to challenge and deny derivative title. He also submitted that the judgments of the Courts below were contrary to material and evidence placed on record, therefore, the grounds give rise to substantial question of law and only on these counts, the appeal required full hearing as provided under Section 100 of CPC. 5. Aforesaid contentions were opposed by learned counsel for the respondents-plaintiff on the ground that the there is a concurrent finding of fact recorded by the courts below and there is no scope of interference in finding of fact recorded by the trial Court and affirmed by the Appellate Court. He further submitted that Zahoor Ali has executed a Will in favour of Shokat Ali and date of death of Shokat Ali or Zahoor Ali is not proved by the appellant-defendant. He also referred rent note Ex.1 which was executed on 15.02.1975 in favour of Shokat Ali and submitted [2025:RJ-JP:13545] (4 of 13) [CSA-247/2022] that thereafter the Shokat Ali was receiving rent. He further referred the documents exhibited by plaintiffs and also the notice wherein it was mentioned that the shop in question fall in share of Shokat Ali. He also referred division (partition) made by Zahoor Ali and submitted that the partition was acted upon and accepted by all legal heirs of Zahoor Ali. He also referred a subsequent Will executed on 15.10.1990 by Zahoor Ali and submitted that a previous Will dated 27.09.1984 was acknowledged by Zahoor Ali. He further submitted that in a suit for determination of standard rent under Section 7 of Rajasthan Rent Control Act, 2001 (for short the Act of 2001’), a provisional rent was determined by the Munsif Court, Newai on 09.08.1988. 6. He further referred judgment in case of Bhogadi Kannababu & Ors Vs. Vuggina Pydamma & Ors. : (2006) 2 WLC(SC)CIVIL 303 and submitted that a tenant has no right under Section 116 of Indian Evidence Act to question maintainability of eviction petition and denied the title of landlord. He further referred judgment in case of Smt. Shanti Sharma and Ors. v. Smt Ved Parbha and Ors. MANU/SC/0816/1987 and submitted that the definition of owner has to be interpreted in broader sense. He further referred judgment in case of Sriram Pasricha vs Jagannath & Ors.: AIR 1996 SC 2335 and submitted that even a co-owner can maintain a petition for eviction as the co-owner falls in the definition of owner. He also referred judgment in case of International B and F Company Vs. J S Rikhi : AIR 1985 Delhi 338 and submitted that the tenant is estopped from questioning the title of landlord. [2025:RJ-JP:13545] (5 of 13) [CSA-247/2022] 7. Heard learned counsel for the parties and perused the material placed on record, and the judgments as referred by learned counsel for both the parties. 8. The facts giving rise to instant second appeal are that the plaintiffs (respondents herein) have filed a suit for eviction and arrears of rent against present appellant and Mahaveer Prasad (since deceased and now through substituted legal representatives of respondent Nos.4/1 to 4/5) on the ground that the tenant has committed default by not paying rent since November, 1998 and the suit property is required for personal and bona fide needs. The defendants have denied the relationship of landlord and tenant with plaintiff and pleaded that the suit property was let out by Zahoor Ali, who is survived by three sons and one of his son Shokat Ali died during lifetime of Zahoor Ali. The defendants have further pleaded that a Will was executed by Zahoor Ali in favour of Shokat Ali but after death of Shokat Ali during lifetime of Zahoor Ali the Will has become infructuous and cancelled. The defendants have further pleaded that they are paying regular rent to Liyakat Ali, another son of Zahoor Ali, and he is landlord of suit property. The defendants have further pleaded that there was a litigation after death of Shokat Ali, therefore, the suit is not maintainable. 9. Learned trial court has framed as many as 7 issues. The plaintiffs have examined 6 witnesses and exhibited 15 documents whereas the defendants have examined 4 witnesses and exhibited 5 documents. Learned trial court has framed a specific issue No.1 about relationship of landlord and tenant between the parties. The trial court have considered the evidence both documentary and [2025:RJ-JP:13545] (6 of 13) [CSA-247/2022] oral and observed that Ex.5 (Will) was proved by PW-3 Namichand Jain who is a deed writer. The plaintiffs have also exhibited rent note Ex.1 to Ex.3 and these documents were also proved by PW-3 Nami Chand. The admission of DW-4 Mahaveer indicate that Ex.-1 bears his signatures. The trial court has opined that by Will Ex.5 Juhoor Ali has divided his property among all three sons and after death of Shokat Ali, legal heirs of Shokat Ali has inherited the property as demarketed for Shokat Ali mentioned in Will. A perusal of documents referred by learned counsel for the respondents also indicated that even on 15.10.1990, Juhoor Ali has executed another Will acknowledging the partition of property among the three sons, by Will Ex.5. By this Will dated 15.10.1990, Juhoor Ali has further bequeathed certain property to a minor beneficiary. The facts as mentioned by learned counsel for the appellant also indicate that Shokat Ali has expired in year 1989 which means Ex.15 was executed after death of Shoukat Ali and acknowledgment by Zuhoor Ali indicate that he has affirmed the execution of Will in favour of Shokat Ali. Basically Zuhoor Ali used Ex.5(Will) as a partition deed and parties have acted upon accordingly. 10. Herein, a fact is also noticed by the trial court that three rent notes Ex.1 to Ex.3 were executed by the defendants and in 1984 Shokat Ali was authorized to accept rent from defendant. The plaintiffs have examined 6 witnesses in support of their case whereas 4 witnesses were examined by the defendants. Out of these 4 witnesses examined by defendants, none of them is legal heir of Zahoor Ali, which means none of legal heir of Zahoor Ali [2025:RJ-JP:13545] (7 of 13) [CSA-247/2022] has supported the case of defendant. Herein, no document whatsoever was produced by the defendants which indicate that any court has ever restrained plaintiffs from seeking possession of the suit property. The defendants have only exhibited a notice Ex.A1 issued by Liyakat Ali claiming to be owner of suit property and in Ex.A-2 reply sent to present respondents-plaintiffs only a fact was mentioned that the defendants are continuously paying rent to Liyakat Ali. The trial court has opined that the notice Ex.A1 was related with present shop is not established. The notice Ex.A1 is a type written copy but Liyakat Ali was not examined by defendants as witnesses to prove said notice. Similarly, a specific defence was not raised by the defendants in their written statement. 11. The dispute between the parties relates to relationship of landlord and tenant and the trial court on basis of evidence of the parties opined that there exists a relationship of landlord and tenant between the parties. The trial court has considered evidence on record submitted by both the parties. There is no contradictory claim filed in any court of law against the claim of plaintiffs. The defendants have not able to produce a person who claims to be owner of suit property, therefore, the issue relating to fact and same was decided against the appellant-defendant, which was affirmed by First Appellate Court on an appeal preferred by defendants. Thus, there is a concurrent finding of fact on relationship of landlord and tenant. 12. As regard to applicability of Muslim Personal Law is concerned, the trial court has considered this issue as well but [2025:RJ-JP:13545] (8 of 13) [CSA-247/2022] herein the dispute is not with regard to Will rather the dispute is between the successor of the property (plaintiffs) and also the occupier of the property (defendants). The occupier is not claiming any right of ownership by any document. The relationship between the parties is at the most landlord and tenant, therefore, there is no dispute with regard to title is concerned in the present suit. In such eventuality, applicability of Muslim Personal Law is not a question of law. If Liyakat Ali or any other legal heir of Zahoor Ali was a party to the proceeding and he is aggrieved from rights under the Will executed by Juhoor Ali then he can defend his rights subject to provision of law, if any, accrued upon him but by serving a notice Ex.A1 upon tenant (appellant defendant), the defendants have no right to challenge succession of property by the plaintiffs who are legal heirs of Shokat Ali. Thus, no substantial question of law arises on the basis of applicability of Muslim Personal Law. 13. In case of Yadarao Dajiba Shrawane (dead) by Lrs. Vs. Nanilal Harakchand Shah (dead) and Ors (supra), Hon’ble Supreme Court after considering the legal position under Section 100 of CPC has opined that when a judgment of final court on fact is contrary to material on record, then misinterpretation of evidence or ignorance of material may give rise to substantial question of law. 14. In case of Bismillah Be (Dead) By LRs vs Majeed Shah (supra), Section 116 of Indian Evidence Act was referred and it is a settled position that a tenant is estopped from challenging the [2025:RJ-JP:13545] (9 of 13) [CSA-247/2022] title of his landlord during continuance of his tenancy but this principle is not applicable in case of derivative title. 15. Here in this case, the defendants have unsuccessfully challenged the title of plaintiffs. They have failed to establish that the plaintiffs were not a landlord under the Rajasthan Rent Control Act. The trial Court and the Appellate Court further considering the evidence both oral and documentary opined that there exists a relationship between landlord and tenant. 16. As regard to admissibility of document is concerned, it is also settled law that the objection has to be raised at the stage of tender of document in evidence but when no objection was raised during evidence then at stage of second appeal, such objection about admissibility or reliance upon inadmissible document cannot be raised. The procedure as prescribed under CPC and Indian Evidence Act are required to be adhered during trial and it is expected by the counsel representing parties to be aware about the procedure and also the provisions of law but in second appeal a ground like findings based on inadmissible document cannot be raised for the first time. 17. In case of Smt. Shanti Sharma and Ors. v. Smt Ved Parbha and Ors. (supra), Hon’ble Supreme Court has held that tenant is estopped from denying the title of landlord and the definition of landlord has to be interpreted in broader sense. Similar view was also expressed by a Co-ordinate Bench of Delhi High Court in case of International B and F Company Vs. J S Rikhi (supra). Similarly in Bhogadi Kannababu & Ors Vs. [2025:RJ-JP:13545] (10 of 13) [CSA-247/2022] Vuggina Pydamma & Ors. (supra), Hon’ble Supreme Court has interpreted Section 116 of Indian Evidence Act. 18. Herein, after considering the submission of learned counsel for the parties and also on perusal of material available on record in light of the judgments as referred by learned counsel for the parties, I am of the considered view that the grounds do not give rise to any substantial question of law. Unless a substantial question of law is involved, a second appeal cannot be entertained for consideration by this Court. 19. Section 100 of CPC provides for second appeal in case wherein the High Court is satisfied that the case involves a substantial question of law. Thus, the First Appellate Court is final court on facts and in second appeal normally cannot re-appreciate the evidence or facts. 20. Just to determine whether a question is substantial question of law or not, was laid down by a Constitution Bench of Hon’ble Supreme Court in case of Chunilal V. Mehta & Sons. Ltd. Vs. Century Spg. and Mgf. Co. Ltd. AIR 1962 SC 1314, as under: "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." [2025:RJ-JP:13545] (11 of 13) [CSA-247/2022] 21. Recently Hon’ble Supreme Court in case of Suresh Lataruji Ramteke versus Sau. Sumabai Pandurang Petkar & Ors. (Civil Appeal No. 6070/2023, arising out of SLP(C)No.20183 of 2022 decided on 21.09.2023) considered the scope of Section 100 of CPC and summarised the law as under: 13. The jurisprudence on Section 100, CPC is rich and varied. Time and again this Court in numerous judgments has laid down, distilled and further clarified the requirements that must necessarily be met in order for a Second Appeal as laid down therein, to be maintainable, and thereafter be adjudicated upon. Considering the fact that numerous cases are filed before this Court which hinge on the application of this provision, we find it necessary to reiterate the principles. 13.1 The requirement, most fundamental under this section is the presence and framing of a “substantial question of law”. In other words, the existence of such a question is sine qua non for exercise of this jurisdiction. 13.2 The jurisdiction under this section has been described by this Court in Gurdev Kaur v. Kaki (2007) 1 SCC 546 (Two-Judge Bench) stating that post 1976 amendment, the scope of Section 100 CPC stands drastically curtailed and narrowed down to be restrictive in nature. The High Court’s jurisdiction of interfering under Section 100 CPC is only in a case where substantial questions of law are involved, also clearly formulated/set out in the memorandum of appeal. It has been observed that: “At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. The effect of the amendment mainly, according to the amended section, was: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; [2025:RJ-JP:13545] (12 of 13) [CSA-247/2022] (iv) Another part of the section is that the appeal shall be heard only on that question.” Gurdev Kaur (supra) was referred to and relied upon in Randhir Kaur v. Prithvi Pal Singh & Ors. (2019) 17 SCC 71 13.3 In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 a Bench of three Judges, held as under in regard to what constitutes a substantial question of law:- a) Not previously settled by law of land or a binding precedent. b) Material bearing on the decision of case; and (c) New point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. Therefore, it will depend on facts of each case. Such principles stand followed in Government of Kerala v. Joseph 2023 SCC Online SC 961 and Chandrabhan v. Saraswati 2022 SCC Online SC 1273. 16.5 Interference on findings of fact permitted in exceptional cases, i.e., when finding is based on either inadmissible or, no evidence. This Court in Dinesh Kumar v. Yusuf Ali (2010) 12 SCC 740 referring to various other cases held:- a) It is not permissible for High Court to reappreciate evidence as if it was the first appellate court unless findings were perverse. b) Finding of fact can be interfered in exceptional circumstances as rarity, rather than a regularity. c) Scrutiny of evidence in second appeal is not prohibited but has to be exercised upon proper circumspection. 22. In case of Amar Singh Vs. Dalip Singh (2012) 13 SCC 405, Hon’ble Supreme Court explained the purpose of framing question of law in following manner: “a) The purpose of framing of substantial question of law is to give the parties an opportunity to come prepared on that particular question. b) When a substantial question of law is formulated by the Court then the same must be made known to parties and thereafter they have to be given an opportunity to advanced arguments thereon. c) If any additional questions were framed at the time of hearing, the Court must hear the parties on that question as well.” [2025:RJ-JP:13545] (13 of 13) [CSA-247/2022] 23. Hon’ble Court in case of Chandrabhan Vs. Saraswati 2022 SCC Online (SC) 1273 (decided on 22.09.2022) has summarised principle relating to Section 100 of CPC in following words:- “(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof.” 24. In view of Discussion made hereinabove, the second appeal sans merits and same is liable to be dismissed. 25. Thus, S.B. Civil Second Appeal is hereby dismissed with pending application(s), if any. (ASHOK KUMAR JAIN),J MR/388