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2000 DIGILAW 166 (MP)

Narendra Kumar v. Madanmohan

2000-02-18

S.P.SRIVASTAVA

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JUDGMENT S.P. Srivastava, J. 1. Heard the learned counsel for the tenant/appellant. 2. Perused the record. 3. Feeling aggrieved by the judgment and decree for his eviction from the premises in dispute and recovery of arrears of rent, damages etc., passed by the first Appellate Court, the tenant/appellant has come up in second appeal to this Court seeking redress praying for the reversal of the impugned decree. 4. The suit giving rise to this appeal had been filed on 11-3-1987. 5. The present appellant had been impleaded as the defendant No. 4 in the aforesaid suit while his father, Sahibram had been impleaded as defendant No. 3. The plaintiff had asserted that the premises in dispute of which he was the owner-landlord had been let out to Amirchand, defendant No. 1 and Padamlal, defendant No. 2 at a rental of Rs. 160/- per month. The defendants No. 1 and 2 had after vacating the shop delivered the possession of the same to the defendants No. 3 and 4 inducting them as sub-tenants and they were occupying the shop in suit as such where they were running a general merchandise shop in the name and style of "Prem Kirana Store'. The defendants No. 1 and 2 had no right to sub let the shop in favour of the defendants No. 3 and 4. It was asserted that the Plaintiff had sent a composite notice terminating the tenancy and demanding the rent etc., but the defendants No. 1 and 2 as well as the defendants No. 3 and 4 who had sent replies to the notices had refused to accept the plaintiff as the landlord of the premises in dispute, the decree for eviction was sought on the grounds envisaged under section 12(1 )(b), (c) and (f) of the Madhya Pradesh Accommodation Control Act, 1961. 6. Sahibram, the defendant No. 3 and Narendra Kumar, the defendant No. 4 had filed a joint written statement. 7. In paragraph 1 of the aforesaid written statement these defendants had asserted that the plaintiff was not the owner of the shop in dispute. It was, however, further added that the shop in dispute belonged to the joint Hindu family of which Ram Kishan Das was the Karta Khandan and it was in his ownership and management wherein Brijmohan, the deceased son of Ram Kishan Das had also a share. It was, however, further added that the shop in dispute belonged to the joint Hindu family of which Ram Kishan Das was the Karta Khandan and it was in his ownership and management wherein Brijmohan, the deceased son of Ram Kishan Das had also a share. It was also asserted that the defendants No. 1 and had no concern with the shop in dispute which continued to be in the tenancy of the defendants No. 3 for the past about 40 years. The defendants No. 1 and 2 never utilised the shop in dispute for their business. It was also asserted that the shop was in the tenancy of the defendant No. 3 arid the defendant No. 4 was doing the business therein along with his father, the defendant No. 3. They were not sub-tenants as claimed by the plaintiff. The allegations of the plaintiff in regard to the other grounds on which the eviction was sought were denied. In paragraph 9 of the written statement, it was in clear and categorie terms asserted that there was no relationship of landlord and tenant between the plaintiff and the answering defendants, i.e., the defendants No. 3 and 4 and on this ground the plaintiff had no right to sue. In paragraph 10 of the written statement it was asserted that the shop in dispute had been let out by Ram Kishan Das, the father of the plaintiff in favour of the defendant No. 3 and he alone was continuing as a tenant thereafter. 8. The first Appellate Court has negatived the claim of the plaintiff for a decree of eviction on any ground other than as contemplated under section 12(1 )(c) of the Madhya Pradesh Accommodation Control Act, 1961. 9. However, on the question in regard to the ground envisaged under section 12(1) (c) of the aforesaid Act, the first Appellate Court on a careful consideration of the evidence and the materials brought on record came to the conclusion that the aforesaid ground had been fully established and proved. 9. However, on the question in regard to the ground envisaged under section 12(1) (c) of the aforesaid Act, the first Appellate Court on a careful consideration of the evidence and the materials brought on record came to the conclusion that the aforesaid ground had been fully established and proved. In this connection, placing reliance on the observations of the Apex Court in its decision in the case of Dilbagrai Punjabi vs. Sharad Chandra, reported in 1988 JLJ560, it has been observed that the contesting Defendant had admitted the Plaintiff to be the owner-landiord of the premises in dispute in the receipts regarding payment of rent which had been duly signed by the tenant and the genuineness whereof had not been disputed. For this reliance has been placed on the receipts filed by the contesting Defendant himself, the due execution and genuineness whereof was not disputed. The first Appellate Court has disbelieved the case of the contesting Defendant. On an appraisal of the evidence, it has been found that the Defendants No. 1 and 2 had sub let the accommodation in favour of the Defendant No. 3 and his brother, Kevalram but the sub-letting had been condoned by the landlord specially when the subletting had taken place somewhere in the year 1955 and there was no written contract. 10. However, the first Appellate Court further found that the contesting defendants No. 1 and 2 in their reply to the notice, exhibit P/28 had denied the existence of the relationship of landlord and tenant between the plaintiff and themselves. They had further denied the title of the plaintiff. The rent receipts filed by the defendants however contained a clear cut and categorical admissions admitting the plaintiff to be the owner and landlord of the premises in dispute. It was also disclosed that the contesting defendants had in fact paid the rent to the plaintiff and he had accepted the same as the owner-landiord of the premises in dispute. The first Appellate Court also found that right from 1972, the contesting defendants had been throughout accepting the plaintiff to be the owner-landiord of the premises in dispute and paying rent to him. 11. The first Appellate Court also found that right from 1972, the contesting defendants had been throughout accepting the plaintiff to be the owner-landiord of the premises in dispute and paying rent to him. 11. The first Appellate Court in such circumstances relying upon the decision of this Court in the case of Smt. Vidya Devi and others vs. Sat Prakash, reported in 1981 MPRCJ SN 53 as well as Bharosilal vs. Kishorilal, reported in 1992 (1) MPWN SN 77, came to the conclusion that the present one was a clear case where in view of the disclaimer of title, the ground invisaged under section 12(1)(c) of the Act had been fully made out. 12. The learned counsel for the appellant has urged that the suit could not be decreed on the ground of disclaimer of title as the disclaimer had to be anterior to the filing of the suit. In the present case it is urged that the disclaimer, if at all was contained in the written statement and as such it could not furnish a ground for the eviction of the tenant. In this connection suffice it to say that the effect of disclaimer of title by a tenant in the written statement filed by him in a suit for eviction was considered by the Apex Court in its decision in the case of Majati Subbarao vs. P. V. K. Krishna Rao (deceased) by Lrs. reported in AIR 1989 SC 2187 . The Apex Court had clearly indicated in its aforesaid decision that in a case where the denial of the landlord's title by the tenant has been expressly made a ground for eviction under the Rent Act it is not open to insist that a denial of title in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be filed by the landlord. The Apex Court had approved of the view taken by the various High Courts that even a denial of the landlord's title by a tenant in a written statement in an eviction petition under the Rent Act furnishes a ground for eviction and can be relied upon in the very proceedings in which a written statement containing the denial had been filed. 13. 13. It may be noticed that the Apex Court in its decision in the case of Majati Subbarao vs. P. V. K. Krishna Rao (deceased) by Lrs., reported in AIR 1989 SC 2187 , while upholding the entitlement of the ground of disclaimer of title for a decree of eviction of the tenant where the disclaimer has come in the written statement it was indicated that to insist that a denial of title in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be filed by the landlord would only lead to unnecessary multiplicity of legal proceedings as the landlord would be obliged to file a second suit for ejectment of the tenant on the ground of forfeiture entailed by the tenant's denial of his character as a tenant in the written statement. It was observed that in that case that an issue had been framed as to whether the tenant's denial of the landlord's title to the property in suit was bona fide. The parties had gone to the trial on this clear issue and the appellant had full knowledge of the ground alleged against him. It was open to him to have objected to the framing of this issue on the ground that it was not alleged in the eviction petition that the appellant had denied the title of the respondent and that the denial of title was bona fide. If he had done that the respondent could have well applied for an amendment of the eviction petition to incorporate that ground. Having failed to raise that contention at that stage it was not open at a later stage to the appellant to say that the eviction decree could not be passed against him as the ground of denial of title was not pleaded in the eviction petition. 14. In the present case also a clear cut issue had been framed on the availability of the ground envisaged under section 12(1) (c) of the Madhya Pradesh Accommodation Control Act, 1961, as the defendant/tenant had joined the issue and gone to trial. No prejudice could be said to have been caused to him in the matter. 15. The defendant No. 4 alone has come up in second appeal, the decree against the other defendants has since attained finality. 16. No prejudice could be said to have been caused to him in the matter. 15. The defendant No. 4 alone has come up in second appeal, the decree against the other defendants has since attained finality. 16. The findings returned by the first Appellate Court against the tenant/appellant upholding the ground envisaged under section 12( 1 )(c) of the Act justifying a decree for eviction could not be demonstrated to be vitiated in law so as to warrant an interference by this Court while exercising the limited jurisdiction envisaged under section 100, Civil Procedure Code. 17. In the aforesaid view of the matter the contention of the learned counsel for the appellant that the disclaimer of the title of the plaintiff contained in the written statement filed by the tenant-defendant was not sufficient and could not be made a basis for the decree for eviction is devoid of merit and is not at all acceptable. 18. No substantial question of law is involved in this appeal which requires consideration by this Court. 19. This second appeal lacks merit and is accordingly dismissed in limine under Order XLI, Rule 11, Civil Procedure Code.