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2004 DIGILAW 213 (MP)

Rajendra Pal Singh v. Bala Sahib Matkar

2004-03-04

SUBHASH SAMVATSAR

body2004
JUDGMENT This appeal has been filed by the tenant challenging the judgment and decree dated 8.1.2001 passed by 9th Additional District Judge, Gwalior in Civil Appeal No. 81-A/99 whereby the first appellate Court has confirmed the judgment and decree dated 8.10.1999 passed by the 10th Civil Judge, Class II, Gwalior in Civil Suit No. 14-A/97. The brief facts of the case are that the plaintiff-respondent No.1 has filed a suit for ejectment against the present appellant on the grounds under section 12(1) (a), (b), (c), (k) and (o) of the M.P. Accommodation Control Act, for short 'the Act'. The trial Court decreed the suit. The appellant preferred first appeal. The first appellate Court confirmed the decree on the grounds under section 12(1) (a), (b) and (o) of the Act while setting aside the decree on other grounds. Hence this appeal. This appeal is admitted by this Court on 10.8.2001 on the fol1owing substantial questions of law: "(1) Whether in the absence of notice of demand under section 12(1) (a) of M.P. Accommodation Control Act, decree for eviction under section 12(1) (a) could be passed? (2) Whether failure to issue direction under the provisions of section 12(11) decree under section 12(1) (o) of the M.P. Accommodation Control Act can be passed? (3) Whether decree under section 12(1) (b) regarding sub-tenancy could be passed in the facts and circumstances of the case ?" As regards ground under section 12(1) (a) is concerned to get a decree on the aforesaid ground it is necessary for the plaintiff to plead that the defendant is in arrears of rent and he has failed to pay or tender the rent within two months from the date of service of the notice. In the present case the demand notice is not filed by the plaintiff. Moreover, in his statement he has no where referred to the notice. Hence, decree under section 12(1) (a) of the Act cannot be passed. Counsel for the respondent submitted that the defendant has admitted that he was served with the notice. However, that admission is not sufficient as the contention of notice cannot be proved merely by admission about the service of notice. It is necessary for the plaintiff to prove that he has demanded the arrears of rent and those arrears of rent were not paid or tendered within two months of the notice. However, that admission is not sufficient as the contention of notice cannot be proved merely by admission about the service of notice. It is necessary for the plaintiff to prove that he has demanded the arrears of rent and those arrears of rent were not paid or tendered within two months of the notice. Thus, the ingredients of section 12(1) (a) of the Act are not found proved in the present case. As regards ground under section 12(1) (o) of the Act is concerned for that it is necessary to prove that the encroachment is not removed by the defendant inspite of notice. Moreover, section 12(11) of the Act requires that if the ground under section 12(1) (o) is made out by the plaintiff: then the Court will grant time to the tenant to restore possession of the' encroached premises to the landlord. In the present case, in the absence of notice ground under section 12(1) (o) of the Act cannot be held to be proved. Moreover, the Court below has not granted any time to the tenant to restore the possession of the encroached premises to the landlord. On both these grounds the order of ejectment under section 12(1) (o) of the Act cannot be sustained. As regards ground under section 12(1) (b) is concerned, it is alleged by the plaintiff that Bhagwandas brother of the tenant is in possession of the suit property. This handing over possession to the brother of the tenant is not sufficient to hold the ground of sub-tenancy proved. The Apex Court in the case of Jagan Nath v. Chander Bhan ( AIR 1988 SC 1362 ) has laid down that it is well settled that parting with possession meant giving possession to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the tenant; user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words, there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant retains the right to possession there is no parting with possession in terms of clause (b) of section 14(1) Delhi Rent Control Act. So long as the tenant retains the right to possession there is no parting with possession in terms of clause (b) of section 14(1) Delhi Rent Control Act. The workings of Delhi Rent Control Act are identical with the wordings of section 12(1) (b) of the M.P. Accommodation Control Act as there is no findings in the present case that tenant has divested himself his right of legal possession, the decree under section 12( 1) (b) can also not sustain. In the result, this appeal is allowed and the judgment and decree passed by the two Courts below is set aside and the plaintiff's suit is dismissed with no orders as to costs.