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Madhya Pradesh High Court · body

2001 DIGILAW 640 (MP)

Gyanchand Badkul v. Shalegram

2001-08-28

S.P.KHARE

body2001
JUDGMENT S.P. Khare, J. 1. These two second appeals under Section 100, Civil Procedure Code one by the tenant and the other by the landlord arise out of a common judgment of the first Appellate Court. 2. The following substantial questions of law were formulated by this Court in S.A. No. 721 of 1998 at the time of admission of this appeal:- 1. Whether the appellant was entitled to deny the derivative title of the respondent No. 1 landlord in view of the fact that he had entered into a contract of sale of the suit property and had filed a suit for specific performance of contract which was not finally decided at the time of filing of the plaint as the appeal was pending? 2. Whether the ultimate decision rendered in the suit for specific performance of contract would justify the claim of the appellant that he had entered into a contract of sale of the suit property and the finding recorded therein would be res judicata in the suit as against the respondent No. 1 who derived the title from the previous owner against whom the suit for specific performance was not decided? 3. Whether, even otherwise, the denial of the derivative title would amount to disclaimer of title within the meaning of Section 12(1)(c) of the M.P. Accommodation Control Act? (hereinafter to be referred to as the Act) The following substantial question of law was formulated in S.A. No. 743 of 1998:- Whether the finding of the trial Court and the first Appellate Court that the defendant is not the tenant-of the plaintiff in respect of 14' x 12' land on the eastern side, is perverse? 3. The facts relevant for the decision of the questions referred above are that Chandra Prakash Jha was owner of a house in Masjid Ward, Bina, District Sagar and Defendant Saligram was his tenant in a portion of this house at a monthly rent of Rs. 30/-. This tenancy was created in or about the year 1960. Plaintiff Gyanchand purchased this house from Chandra Prakash Jha by registered sale-deeds dated 22-1-1980 and 4-10-1980. In the eviction suit filed by the plaintiff the defendant denied his title and set up the title in himself. 30/-. This tenancy was created in or about the year 1960. Plaintiff Gyanchand purchased this house from Chandra Prakash Jha by registered sale-deeds dated 22-1-1980 and 4-10-1980. In the eviction suit filed by the plaintiff the defendant denied his title and set up the title in himself. According to the plaintiff 12' x 14' land in front of the house, on the eastern side, was a portion of the house 61' x 14', which had been let out to the defendant by the original owner. The defendant pleaded that this 12' x 14' land was the Nazul land and it was in his occupation from the year 1960 but in the year 1980 he was granted lease of this land by the State. Regarding the remaining house of 14' x 50' the defendant's plea was that there was an agreement of sale by the original owner in his favour and he had filed a suit for specific performance of contract against him. That suit ultimately failed on 24-4-1986, so far as the relief of execution of the registered sale-deed in his favour is concerned. The appeal filed by him was also dismissed on 15-12-1989. According to the defendant the denial of derivative title of the plaintiff on that basis was bona fide. It is also note-worthy that the defendant did not deposit any rent in the Court as required by Section 13(1) of the Act and, therefore, his "defence against eviction" was struck out by the trial Court under Section 13(6) of the Act by order dated 28-10-1986, i.e. after the decision in the suit for specific performance of contract. The suit for eviction was decreed by the trial Court in respect of the portion 14' x 50' under Section 12(1)(c) of the Act but in respect of the remaining portion on the eastern side it was held that it was Nazul land and was not included in the tenancy of the defendant and for which he was granted Patta by the State on 22-3-1980 and the suit in respect of that area was dismissed. In appeal by both the sides the decree as passed by the trial Court has been affirmed. 4. At the stage of the first appeal the defendant maintained his stand that he himself is owner of the 14' x 50' portion and the plaintiff has no title to that portion. In appeal by both the sides the decree as passed by the trial Court has been affirmed. 4. At the stage of the first appeal the defendant maintained his stand that he himself is owner of the 14' x 50' portion and the plaintiff has no title to that portion. S. A. No. 721 of 1998: 5. There is a concurrent finding of fact of the trial Court and the first Appellate Court on the point that the defendant is liable to eviction under Section 12(1)(c) of the Act on the ground of disclaimer of title of the plaintiff which has affected his interest adversely and substantially. The defendant denied the title of the plaintiff from the very beginning on the premise that he himself is the owner and he did not pay or deposit any rent as required by Section 13(1) of the Act resulting in his defence against eviction being struck out. If he desired the protection of the Act it was incumbent upon him to deposit the rent. Manaram vs. Om Prakash, 1990 MPLJ 452 : 1990 JLJ 197 and Inderlal vs. Mahugibai, 1967 MPLJ 125 : 1967 JLJ 31 . Now his defence having been struck out and that too for valid reasons, the defendant cannot be permitted to assail the eviction decree. The denial of title in the written statement furnishes a valid ground for eviction in the same suit M. Subbarao vs. P. V. Krishna Rao, AIR 1989 SC 2187 ; and Bhagwati Prasad vs. Ramesh Chand, 1994 MPLJ 619 . The expression "defence against eviction" used in Section 13(6) means "the defences available to the tenant under Section 12 of the Act". The other defences would still be available to the tenant. It has been held by this Court in Shyamlal vs. Gurubachan Singh, 1999 (2) MPLJ 288 that in case defendant seeks to raise an alternative defence under Section 12 of the Act, then he is bound to deposit the rent under Section 13(1) of the Act. In Manorama vs. Suresh, 1999 (1) MPLJ 436 it has been held that the defendant is restricted from raising any plea which could affect the pleadings of the plaintiffs in regard to ground under Section 12(1) of the Act. Learned counsel for the appellant has cited three decisions of this Court in Khuman Singh vs. Nathuram, 1991 JLJ 348 . In Manorama vs. Suresh, 1999 (1) MPLJ 436 it has been held that the defendant is restricted from raising any plea which could affect the pleadings of the plaintiffs in regard to ground under Section 12(1) of the Act. Learned counsel for the appellant has cited three decisions of this Court in Khuman Singh vs. Nathuram, 1991 JLJ 348 . Nirvikar Gupta vs. Ram Kumar, AIR 1992 MP 115 and Bhojraj Rameshchandra vs. Ghanshyam Das Agrawal, 2001 (2) MPLJ 8 : 2000 (II) MPJR 355 in support of the plea that mere denial of the derivative title does not amount to disclaimer of title inviting the ground for eviction under Section 12(1)(c) of the Act. These rulings do not apply to the present case as here the defendant has not only denied the title of the plaintiff but he has set up the title in himself and continued to take that stand even after decision of the Court in the suit for specific performance of contract filed by him against the previous owner and the plaintiff. 6-7. The answer to question No. 1 is that the defendant was entitled to deny the derivative title of the plaintiff in view of the agreement of sale with the previous owner but in that case he has to defend himself on that ground alone. He cannot turn around and seek protection under Section 12 of the Act when he did not pay or deposit the rent and his defence against eviction was struck out. The answer to question No. 2 is that the decree in the suit for specific performance of contract operates as res judicata on the point that the defendant has not acquired title to the demised portion and the plaintiff has acquired title on the basis of the two registered sale-deeds in his favour. The answer to question No. 3 is that the denial of derivative title would amount to disclaimer of title within the meaning of Section 12(1)(c) of the Act on the facts of the present case as the defendant maintained that stand even after the decision in the said suit against him and did not deposit the rent. The answer to question No. 3 is that the denial of derivative title would amount to disclaimer of title within the meaning of Section 12(1)(c) of the Act on the facts of the present case as the defendant maintained that stand even after the decision in the said suit against him and did not deposit the rent. He has not only denied the derivative title of the plaintiff but he has set up the title in himself and he is not prepared to recognise the plaintiff as his landlord and deposit the rent for payment to him. 8. It is true that even when the defence against eviction is struck out the plaintiff has still to prove the ground of eviction set up by him but the burden of doing so becomes very light. In the present case the denial of title of the plaintiff was not bona fide in face of the two registered sale-deeds, in his favour and the dismissal of the defendant's suit for specific performance of contract. The failure to pay or deposit the rent disables the defendant to fall back on the protection under Section 12 of the Act. The deposit of rent after a long time in the year 1997 at the stage of the first appeal in compliance with the stay order of the first Appellate Court has no meaning when the defence against eviction had been struck out long back by the trial Court on 28-10-1986. The eviction decree under Section 12((1)(c) of the Act is unassailable and therefore, the tenant's appeal is dismissed. 9. S.A.. No. 743 of 1998: So far as the appeal filed by the plaintiff is concerned the finding of the two Courts that 12' x 14' of land lying in front of the house let out to the defendant was not the part of the lease is highly perverse. Chandra Prakash Jha has sold the entire house to the plaintiff under the two registered sale-deeds in the year 1980. It has been found that the area sold to the plaintiff is 3325 Sq.ft. and the area purchased by the father of Chandra Prakash Jha was 2500 Sq.ft. and therefore, he could not convey title in respect of the excess area. That is not the real question in issue. It has been found that the area sold to the plaintiff is 3325 Sq.ft. and the area purchased by the father of Chandra Prakash Jha was 2500 Sq.ft. and therefore, he could not convey title in respect of the excess area. That is not the real question in issue. The point is whether 12' x 14' land in front of the house was part of the lease or annexed to the house which was the subject matter of lease. It is admitted by the defendant in his written statement and also in his evidence that he started using this land appurtenant to the house let out to him from the year 1960. This land came into occupation of the defendant when he came into possession of the house which was leased out to him. This land on the eastern side of the house had no separate identity. The defendant came to have his feet on this land when he was inducted in the house by the landlord. His occupation of this land originated from the time he came into possession of the house as a tenant. Therefore, when the defendant came to occupy the house of Chandra Prakash Jha as a tenant he also started using the land in front of the house. That was also the part and parcel of the lease. The origin of the defendant's entry on that land was his possession of the house as a tenant. He used the land for twenty years in his capacity as the tenant and then obtained its Patta from the Nazul Department. There is a public road on the eastern side of this open land. So the Defendant must be using this land for going into and coming out from the house. There was no other way to the house which he had taken on rent. That land was also the subject matter of tenancy. The defendant cannot be legally permitted to have the Patta of that land from the Nazul Authorities without restoring its possession to the lessor. Therefore, when the defendant becomes liable to eviction from the house he has to restore the possession of the land in front of the house to the plaintiff. The patta of this land could not be granted to the defendant. Therefore, when the defendant becomes liable to eviction from the house he has to restore the possession of the land in front of the house to the plaintiff. The patta of this land could not be granted to the defendant. It has to be given to the plaintiff who is the owner of the house otherwise his house would be blocked from eastern side and he cannot come on the road. This basic aspect has not been kept into consideration by the two courts below. The plaintiff is entitled to possession of this 12' x 14' land also which is on the eastern side of his house. 10. The appeal filed by the plaintiff is allowed. The judgment and decree of the two courts below in respect of 12' x 14' land on the eastern side of the house are set aside and the plaintiffs suit for eviction of the defendant is decreed in respect of that portion also. The defendant will deliver possession of the house 14' x 50' and the land 12' x 14' as shown in the plaint map, after removal of the structure to the plaintiff. The appeal filed by the defendant is dismissed.