Parvatibai & ANR.
Vs. Shivpyari Dwarkadas Lahoti & Ors.  INSC 32 (9 January 2009)
JURISDICTION CIVIL APPEAL NO.72 OF 2009 (Arising out of S.L.P. (C) No.237 of
2008) Parvatibai and Anr. ...Appellant(s) Versus Shivpyari Dwarkadas Lahoti and
O R D E R
Delay in filing
special leave petition is condoned.
Heard learned counsel
for the parties.
This is an appeal for
setting aside judgment dated 25.1.2007 rendered by the Single Judge of the
Bombay High Court in Second Appeal No.210 of 1986 whereby he reversed the
judgments and decrees passed by 3rd Joint Civil Judge (Junior Division), Nanded
and Additional District Judge, Nanded respectively and decreed the suit for
recovery of possession filed by the plaintiff, Dwarkadas, who is now
represented by his legal representatives.
A perusal of the
record shows that on the pleadings of the parties, the trial Court framed five
issues including whether the plaintiff has surrendered the right of lease of
the disputed property and whether defendant No.1 was put in possession thereof.
The trial Court considered the oral and documentary evidence produced by the
parties and held that the plaintiff had surrendered the lease of eastern half
....2/- -2- portion of the suite plot and that he released the same in favour
of defendant Nos.2 and 3 by executing registered lease deed and also delivered
possession to them. On that premise, the suit of the plaintiff was dismissed.
The appellate Court independently analyzed the pleadings and evaluated the
evidence and confirmed the findings recorded by the trial Court. The learned
Single Judge framed the following question of law:- "Whether the permanent
lease in question could be terminated or cancelled only on the verbal assertion
of the landlord that he was asked to recover possession of the eastern half
portion by the deceased plaintiff and that such surrender of lease could be
validity recognized? However, instead of directing his attention to the
afore-mentioned question, the learned Single Judge re-appreciated the entire
evidence and reversed the concurrent finding of fact recorded by two courts.
It is well settled
that in exercise of power under Section 100 of the Code of Civil Procedure,
1908, the High Court can interfere with the finding of fact only if the same is
perverse. In the present case, we find that the learned Single Judge did not
find any perversity in the findings of fact and conclusions recorded by the
lower appellate court which is the final court of fact and yet he reversed the
judgments of the courts below by re-appreciating the evidence, which is legally
appeal is allowed, impugned judgment is set aside and the one passed by the
lower appellate Court is restored.
Delhi, January 09, 2009.
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