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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 231 OF 2015

DAMODAR LAL ...  APPELLANT (S)

VERSUS

SOHAN DEVI AND OTHERS           ... RESPONDENT (S)

J  U  D  G  M  E  N  T

KURIAN, J.:

1. The facts unfold the plight of a poor landlord languishing  

in courts for over fourty years. The case gets sadder when we  

note that appellant had been successful both in the trial court  

and the first appellate court and the saddest part is that the  

High  Court  in  second  appeal,  went  against  him  on  a  pure  

question of fact!

2. Issue number-3 framed in  Civil  Regular  Suit  No.  191 of  

1974  for  eviction  on  the  ground  of  unauthorised  

construction/material alteration, decided on 21.12.1989 in the  

Court of Munsiff, Bhilwara, Rajasthan, reads as follows:

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“Whether  the  tenant  has  carried  out  permanent  construction  on  the  plot  thereby  causing  a  permanent change in the identity of the plot against  the terms of the rent agreement?”   

3. Having analysed and appreciated the evidence of PWs-1  

and 2 and also DWs- 1 to 4, the trial court came to the following  

finding on the issue:

“Thus all the witnesses of both sides have stated that  when the plot was taken on rent, at that time, the  plot was empty. The disputed plot was taken on rent.  Later  walls  were constructed;  sheets were put  and  were taken into use as shop and godown. Even today  the plot is being used as shop and godown.”

4. Dissatisfied,  the  tenants  took  up  the  matter  in  appeal  

before  the  Court  of  the  Additional  District  Judge-I,  Bhilwara,  

Rajasthan in Civil Appeal No. 20 of 1999 (originally presented  

before the District  Judge,  Bhilwara,  Rajasthan on 19.01.1990  

and since transferred to the Additional District Judge). In the  

judgment dated 22.09.2000, the first appellate court, after re-

appreciating the whole evidence, came to the conclusion that:  

“...  In  my  opinion  the  evidence  that  had  been  presented  before  the  subordinate  court,  the  subordinate  court  has  not  made  any  mistake  in  coming to the conclusion that the tenant has made  structural changes in the rented accommodation. The  appellant tenant has not been able to present any  

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evidence to show that the consent of the land lord  had  been  taken  before  making  structural  changes. ...”  

5. On such findings, the appeal was dismissed. Thus, there  

are two findings of fact against the tenants/respondents.

6. The tenants pursued the matter in Second Appeal No. 109  

of 2000 before the High Court of Rajasthan which was allowed  

by  the  impugned  judgment  dated  27.09.2012.  The  following  

were  the  substantial  questions  of  law framed in  the  second  

appeal:

“ (1) Whether  on  the  facts  and  in  the  circumstances of this case, the learned courts  below  have  erred  in  granting  a  decree  for  eviction on the ground of material alteration  while  ignoring  the  relevant  considerations  and proceeding on irrelevant considerations.

(2) Whether on the facts of this case, the learned  courts  below  have  erred  in  not  drawing  adverse inference for non-appearance of the  plaintiff  Damodar  Lal  in  the  witness  box?”

7. The  High  Court,  in  the  second  appeal,  came  to  the  

conclusion that the concurrent finding on structural change, in  

the absence of the statement of the plaintiff before the court,  

cannot  be  treated  to  be  trustworthy.  The  High  Court  went  

further  and  held  that  adverse  inference  should  have  been  

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drawn for  the non-appearance of  the plaintiff  in  the witness  

box,  and  in  such  circumstances,  the  finding  on  material  

alteration is totally perverse. We feel it necessary to quote the  

relevant portion from the impugned judgment:

“...  In the considered opinion of this Court,  such  finding in the statement of the plaintiff cannot be  treated to be trustworthy or  in  consonance with  law. The trial court was under obligation to draw  adverse inference for the non-appearance of the  plaintiff in the witness-box. On the contrary, it has  relied upon the statement  of  P.W.-1  Rameshwar  Lal  who was the previous owner of the property  from  whom  the  plaintiff  purchased  the  said  property.

Therefore, the finding arrived at by the trial  court on the issue of material alteration is totally  perverse  and  not  based  upon  sound  and  trustworthy  evidence.  The  trial  court  has  committed gross error while not drawing adverse  inference  for  non-appearance  of  the  plaintiff  Damodar Lal because he was the only witness to  prove  the  fact  of  material  alteration  by  way  of  producing  documentary  evidence  which  is  the  registered sale-deed executed by Rameswhwar Lal  in favour, so also, his oral statement.”

           8. And thus, the High Court allowed the second appeal and  

the suit for eviction was dismissed. Aggrieved, the landlord is  

before us in the civil appeal.  

9. ‘Perversity’  has  been  the  subject  matter  of  umpteen  

number of decisions of this Court. It has also been settled by  

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several  decisions  of  this  Court  that  the first  appellate  court,  

under Section 96 of The Civil Procedure Code, 1908, is the last  

court of facts unless the findings are based on evidence or are  

perverse.  

10. In Krishnan v. Backiam and another1, it has been held  

at paragraph-11 that:

“11. It may be mentioned that the first appellate  court under Section 96 CPC is the last court of  facts.  The  High  Court  in  second  appeal  under  Section  100  CPC  cannot  interfere  with  the  findings  of  fact  recorded  by  the  first  appellate  court  under  Section  96  CPC.  No  doubt  the  findings of fact of the first appellate court can be  challenged in second appeal on the ground that  the said findings are based on no evidence or are  perverse, but even in that case a question of law  has  to  be  formulated  and  framed  by  the  High  Court to that effect. …”

11. In  Gurvachan Kaur  and others v.  Salikram (Dead)  

Through  Lrs.2,  at  paragraph-10,  this  principle  has  been  

reiterated:

“10. It  is  settled  law  that  in  exercise  of  power  under Section 100 of the Code of Civil Procedure,  the High Court cannot interfere with the finding of  

1

(2007) 12 SCC 190 2 (2010) 15 SCC 530

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fact recorded by the first appellate court which is  the final court of fact, unless the same is found to  be perverse.  This  being the position,  it  must  be  held  that  the  High  Court  was  not  justified  in  reversing the finding of fact recorded by the first  appellate  court  on  the  issues  of  existence  of  landlord-tenant  relationship  between the plaintiff  and the defendant and default committed by the  latter in payment of rent.”

12. In the case before us, there is clear and cogent evidence  

on  the  side  of  the  plaintiff/appellant  that  there  has  been  

structural  alteration  in  the  premises  rented  out  to  the  

respondents  without  his  consent.  Attempt  by  the  

defendants/respondents to establish otherwise has been found  

to be totally non-acceptable to the trial court as well as the first  

appellate court. Material alteration of a property is not a fact  

confined to the exclusive/and personal knowledge of the owner.  

It is a matter of evidence, be it from the owner himself or any  

other  witness  speaking  on  behalf  of  the  plaintiff  who  is  

conversant with the facts and the situation. PW-1 is the vendor  

of the plaintiff, who is also his power of attorney. He has stated  

in unmistakable terms that there was structural  alteration in  

violation of the rent agreement. PW-2 has also supported the  

case  of  the  plaintiff.  Even  the  witnesses  on  behalf  of  the  

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defendant, partially admitted that the defendants had effected  

some structural changes.

13. Be  that  as  it  may,  the  question  whether  there  is  a  

structural alteration in a tenanted premises is not a fact limited  

to the personal knowledge of the owner. It can be proved by  

any admissible and reliable evidence.  That burden has been  

successfully  discharged  by  the  plaintiff  by  examining  PWs-1  

and 2. The defendants could not shake that evidence. In fact,  

that  fact  is  proved  partially  from  the  evidence  of  the  

defendants themselves, as an admitted fact. Hence, only the  

trial court came to the definite finding on structural alteration.  

That finding has been endorsed by the first appellate court on  

re-appreciation of the evidence, and therefore, the High Court  

in  second  appeal  was  not  justified  in  upsetting  the  finding  

which is a pure question of fact. We have no hesitation to note  

that both the questions of law framed by the High Court are not  

substantial questions of law. Even if the finding of fact is wrong,  

that by itself will not constitute a question of law. The wrong  

finding should stem out on a complete misreading of evidence  

or it should be based only on conjectures and surmises. Safest  

approach  on  perversity  is  the  classic  approach  on  the  

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reasonable  man’s  inference  on  the  facts.  To  him,  if  the  

conclusion on the facts in evidence made by the court below is  

possible, there is no perversity. If not, the finding is perverse.  

Inadequacy of evidence or a different reading of evidence is not  

perversity.

14. In  Kulwant Kaur and others v.  Gurdial Singh Mann  

(Dead) by Lrs.3,  this Court has dealt with the limited leeway  

available  to  the  High  Court  in  second  appeal.  To  quote  

paragraph-34:

“34. Admittedly,  Section  100  has  introduced  a  definite restriction on to the exercise of jurisdiction  in  a  second  appeal  so  far  as  the  High  Court  is  concerned.  Needless  to  record  that  the  Code  of  Civil Procedure (Amendment) Act, 1976 introduced  such an embargo for such definite objectives and  since we are not required to further probe on that  score,  we  are  not  detailing  out,  but  the  fact  remains  that  while  it  is  true  that  in  a  second  appeal  a  finding  of  fact,  even  if  erroneous,  will  generally not be disturbed but where it  is  found  that the findings stand vitiated on wrong test and  on the basis of assumptions and conjectures and  resultantly  there  is  an  element  of  perversity  involved therein, the High Court in our view will be  within its jurisdiction to deal with the issue. This is,  however, only in the event such a fact is brought  to  light  by  the  High  Court  explicitly  and  the  

3 (2001) 4 SCC 262

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judgment  should  also  be  categorical  as  to  the  issue of perversity vis-à-vis the concept of justice.  Needless to say however, that perversity itself is a  substantial question worth adjudication — what is  required is a categorical finding on the part of the  High  Court  as  to  perversity.  In  this  context  reference be had to Section 103 of the Code which  reads as below:

“103. In any second appeal,  the High Court  may,  if  the  evidence  on  the  record  is  sufficient, determine any issue necessary for  the disposal of the appeal,—

(a)  which has not been determined by  the lower appellate court or by both the  court  of  first  instance  and  the  lower  appellate court, or

(b) which has been wrongly determined  by such court or courts by reason of a  decision on such question of  law as is  referred to in Section 100.”

The requirements stand specified in Section 103  and nothing short of it will bring it within the ambit of  Section 100 since the issue of perversity will also come  within  the  ambit  of  substantial  question  of  law  as  noticed above. The legality of finding of fact cannot but  be termed to be a question of law.  

We  reiterate  however,  that  there  must  be  a  definite  finding to  that  effect  in  the judgment  of  the  High Court so as to make it evident that Section 100 of  the Code stands complied with.”

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15. In  S.R. Tiwari v.  Union of India4, after referring to the  

decisions of this Court, starting with Rajinder Kumar Kindra  

v.   Delhi  Administration,  Through  Secretary  (Labour)  

and others5, it was held at paragraph-30:

“30. The findings of fact recorded by a court can  be held to be perverse if the findings have been  arrived  at  by  ignoring  or  excluding  relevant  material  or  by  taking  into  consideration  irrelevant/inadmissible material. The finding may  also be said to be perverse if  it  is “against the  weight  of  evidence”,  or  if  the  finding  so  outrageously  defies  logic  as  to  suffer  from the  vice of irrationality. If a decision is arrived at on  the basis of no evidence or thoroughly unreliable  evidence  and  no  reasonable  person  would  act  upon it, the order would be perverse. But if there  is some evidence on record which is acceptable  and which could be relied upon, the conclusions  would not be treated as perverse and the findings  would  not  be  interfered  with.  (Vide Rajinder  Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635 :  1985  SCC  (L&S)  131  :  AIR  1984  SC  1805] , Kuldeep Singh v. Commr. of Police [(1999)  2 SCC 10 : 1999 SCC (L&S) 429 : AIR 1999 SC  677]  , Gamini  Bala  Koteswara  Rao v. State  of  A.P. [(2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 :  AIR  2010  SC  589]  and Babu v. State  of  Kerala[(2010)  9  SCC  189  :  (2010)  3  SCC  (Cri)  1179] .)”

4 (2013) 6 SCC 602 5 (1984) 4 SCC 635

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This  Court  has  also  dealt  with  other  aspects  of  perversity.

16. We do not  propose to  discuss  other  judgments,  though  

there is plethora of settled case law on this issue. Suffice to say  

that  the approach made by the High Court  has been wholly  

wrong,  if  not,  perverse.  It  should  not  have  interfered  with  

concurrent findings of the trial court and first appellate court on  

a  pure question of  fact.  Their  inference on facts  is  certainly  

reasonable.  The  strained  effort  made  by  the  High  Court  in  

second  appeal  to  arrive  at  a  different  finding  is  wholly  

unwarranted  apart  from  being  impermissible  under  law.  

Therefore, we have no hesitation to allow the appeal and set  

aside the impugned judgment of the High Court and restore  

that of the trial court as confirmed by the appellate court.  

17. At  this  juncture,  learned  Counsel  appearing  for  the  

respondents,  praying  for  some  reasonable  time  to  vacate,  

submitted  that  in  the  nature  of  the  timber  and  furniture  

business carried on at the premises, they require some time to  

find  out  alternate  location/accommodation.  Having  regard  to  

the entire facts and circumstances of the case, we are of the  

view that the respondents be given time up to 31st March, 2017  

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which is agreeable to the appellant as well, though reluctantly.  

The respondents are directed to file the usual undertaking in  

this  Court  and also continue to  pay the use and occupation  

charges at the rate of Rs.10,000/- per month. In the event of  

any default or violation of the terms of undertaking, the decree  

shall  be  executable  forthwith,  in  addition  to  the  liability  for  

contempt of court.  

18. The appeal is allowed as above with costs quantified at  

Rs.25,000/-.

...................CJI.           (T. S. Thakur)

......................J.        (Kurian Joseph)

New Delhi; January 5, 2016

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