IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE 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 Ors.      ...Respondent(s)

O  R  D  E  R

Delay in filing special leave petition is condoned.

Leave granted.

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 impermissible.

Accordingly, the appeal is allowed, impugned judgment is set aside and the

one passed by the lower appellate Court is restored.

......................J.       [B.N. AGRAWAL]

......................J.       [G.S. SINGHVI]

New Delhi, January 09, 2009.