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2004 DIGILAW 751 (MP)

Govind Prasad Geete v. Vidyawati

2004-09-08

S.K.PANDE

body2004
ORDER S.K. Pande, J. 1. This revision under section 115 of Civil Procedure Code is directed against the order dated 12-1-1998 passed by 1st Civil Judge Class-I, Khandwa in C.S. No. 36-A/95. 2. Late Shambhoo Prasad Pathak and non-applicant Gajanan Pathak real brothers are owners of suit house, described in Schedule-A of the plaint. Admittedly applicant was inducted into the tenancy on monthly rent of Rs. 50/- per month. Late Shambhoo Prasad Pathak and non-applicant Gajanan Pathak jointly instituted C.S. No. 62-A/81 (Annexure/D) before the 3rd Civil Judge Class-JJ, Khandwa seeking eviction of tenant/applicant from the suit house under section 12(1)(a)(c) of the MP Accommodation Control Act (hereinafter referred to "the Act" for short). Filing written statement (Annexure/E), the applicant contended that two brothers late Shambhoo Prasad Pathak and non-applicant Gajanan Pathak owned several houses in the city. Late Shambhoo Prasad having sold his share of the property long back, left the city and non-applicant Gajanan Pathak alone was the owner. Non-applicant Gajanan Pathak by executing agreement dated 25-6-1974 agreed to sell the suit house to the applicant for a sum of Rs. 15,000/- . Since then the applicant seized to be the tenant of late Shambhoo Prasad Pathak and non-applicant Gajanan Pathak. The Civil judge deciding the suit aforesaid C.S. No. 62-A/81 vide judgment dated 4-8-1984 (Annexure G) on the basis of agreement dated 25-6-1974 held that relationship of landlord and tenant between the parties has not been proved. Therefore, dismissed the suit C.S. No. 62-A/81 seeking eviction of tenant/applicant. Being aggrieved, landlord late Shambhoo Prasad and non-applicant Gajanan Pathak preferred C.A. No. 27-A/89 before the IInd ADJ, Khandwa. The First Appellate Court vide judgment dated 7-11-1989 (Annexure-H) held that the applicant even after execution of alleged agreement dated 25-6-1974 by one of the co-owner non-applicant Gajanan Pathak only, continue to be the tenant of landlords late Shambhoo Prasad Pathak and non-applicant Gajanan Pathak. Further, the suit seeking eviction and recovery of arrears of rent accordingly has been decreed. Being aggrieved by the judgment-decree aforesaid in C.A. No. 27-A/89 tenant/applicant preferred S.A. No. 534/89 before this Court. Since the arrears of rent as claimed by landlords late Shambhoo Prasad Pathak and non-applicant Gajanan Pathak was paid by applicant, ground seeking eviction under section 12(1)(a) of the Act did not exist. Being aggrieved by the judgment-decree aforesaid in C.A. No. 27-A/89 tenant/applicant preferred S.A. No. 534/89 before this Court. Since the arrears of rent as claimed by landlords late Shambhoo Prasad Pathak and non-applicant Gajanan Pathak was paid by applicant, ground seeking eviction under section 12(1)(a) of the Act did not exist. Dealing with the ground of eviction under section 12(1)(c) of the Act relating to disclaimer of title on the basis of alleged agreement dated 25-6-1974, it has been held that the facts relating to agreement dated 25-6-1974 were stated in the written statement without any ulterior motive. Therefore, allowing the appeal C,S. No. 62-A/81 seeking eviction has been dismissed vide judgment (Annexure-I). 3. Late Shambhoo Prasad Pathak and non-applicant Pathak presenting plaint (Annexure-A) instituted a fresh C.S. No. 36-A/95 before the 1st Civil Judge Class-I, Khandwa seeking eviction and recovery of rent for the period from January, 1991 to April, 1995. Tenant/applicant filing written statement (Annexure-B) contended that vide agreement dated 25-6-1974 non-applicant Gajanan Pathak agreed to sell the suit house to him. Therefore, his possession of suit house cannot be said to be under the tenancy. In C.S. No. 62-A/81, issue relating to relationship of landlord and tenant between the parties was decided in negative. As such judgment dated 4-8-1984 (Annexure-G) passed by 3rd Civil Judge Class-II, Khandwa in C.S. No. 62-A/81 operates res judicata. On pleadings aforesaid in C.S. No. 36-A/95, the preliminary issue as to bar of suit by res judicata has been framed. The Court below vide impugned order dated 12-1-1998 held that in C.S. No. 62-A/81 the judgment since relates to eviction under section 12(1)(a)(c) of the Act, would not operate res judicata. Being aggrieved, tenant/appellant has preferred this revision under section 115 of Civil Procedure Code. 4. It is contended that in suit C.S. No. 62-A/81 vide judgment dated 4-8-1984 (Annexure/G) the Court held that with reference to agreement dated 25-6-1974 said to have been executed by non-applicant Gajanan Prasad Pathak only, relationship of landlord and tenant between the parties extinguished and applicant's possession of suit house shall be deemed to be a possession in part performance under section 53-A of the T.P. Act. Whatever may the judgment of First Appellate Court in C.A. No. 27-A/89 (Annexure-H) the finality was attached vide judgment of this Court in S. A. No. 534/89 (Annexure-I) although there is nothing specific in the judgment (Annexure-I) that the relationship of landlord and tenant infact extinguished, the suit C.S. No. 62A/81 since was finally dismissed, the judgment would operate res judicata. To support the contention Pawan Kumar Gupta vs. Rochiram Nagdeo AIR 1999 SC 1823 has been read as under :- If dismissal of the prior suit was on a ground affecting the maintainability of the suit any finding in the judgment adverse to the defendant would not operate as res judicata in a subsequent suit. But if dismissal of the suit was on account of extinguishment of the cause of action or any other similar cause a decision made in the suit on a vital issue involved therein would operate as res judicata in a subsequent suit between the same parties. It is for the defendant in such a suit to choose whether the judgment should be appealed against or not. If he does not choose to file the appeal he cannot thereby avert the bar of res judicata in the subsequent suit, (emphasis supplied) 5. The Civil Judge vide judgment dated 4-8-1984 (Annexure-G) in C.S. No. 62-A/81 held that relationship of landlord tenant extinguished w. e. f. 25-6-1974 the date, the alleged agreement to sell the suit house to the applicant was executed by one of the co-landlord non-applicant Gajanan Pathak. The First Appellate Court in C.A. No. 27-A/89 very specifically dealt with the aspect of relationship of landlord-tenant between the parties. Admittedly, late Shambhoo Prasad Pathak and non-applicant Gajanan Pathak were owners of suit house. There had been no partition among the brothers. Acting jointly the applicant was inducted into the tenancy on monthly rent of Rs. 50/- per month. Agreement to sell the suit house to the extent of his share by one co-landlord would never affect adversely to the interest of other co-landlord i.e. late Shambhoo Prasad Pathak. In such a case in spite of alleged agreement dated 25-6-1974 the applicant continue to be the tenant of landlords late Shambhoo Prasad Pathak and non-applicant Gajanan Pathak. Even in written statement filed by the applicant it has been contended that late Shambhoo Prasad Pathak and non-applicant Gajanan Pathak real brothers owned several houses in the city. In such a case in spite of alleged agreement dated 25-6-1974 the applicant continue to be the tenant of landlords late Shambhoo Prasad Pathak and non-applicant Gajanan Pathak. Even in written statement filed by the applicant it has been contended that late Shambhoo Prasad Pathak and non-applicant Gajanan Pathak real brothers owned several houses in the city. Late Shambhoo Prasad Pathak having sold his share of the property long back, left the city and non-applicant Gajanan Pathak became owner of the suit house. Gajanan Pathak only executed an agreement dated 25-6-1974 in his favour. Admittedly, tenant-applicant filed C.S. No. 286-A/93 before the Und Civil Judge Class-I, Khandwa seeking specific performance of contract-agreement dated 25-6-1974 wherein late Shambhoo Prasad Pathak was also made a defendant. In the suit aforesaid tenant/applicant requested the Court to effect partition between late Shambhoo Pathak and non-applicant Gajanan Pathak. Allotting the suit house to the share of non-applicant Gajanan Pathak be further pleased to direct him to execute a registered sale deed with reference to agreement dated 25-6-1974. S.A. No. 425/97 arising out of judgment-decree passed by Und Civil Judge Class-I, Khandwa in C.S. No. 286/93 was finally disposed of by this Court vide judgment dated 9-8-2004 wherein the suit aforesaid has been decreed as under :- 1. That the suit house jointly recorded in the name of Gajanan Prasad Pathak and defendant-late Shambhoo Pathak be partitioned in equal share to the extent of one half each. 2. After affecting partition defendant-respondent Gajanan Prasad Pathak shall execute a registered sale deed of the portion of suit house allotted to him on receipt of balance sum with reference to agreement dated 25-7-1974 in favour of plaintiff/appellant and shall perform all necessary requirements to convey a valid transfer of property. 3. Defendant/respondents shall bear their cost and pay the costs of plaintiff/respondents. Counsel fees as per rules or certificate (whichever is less). Finding in C.A. No. 27-A/89 arising out of judgment-decree dated 4-8-1984 passed by Civil Judge in C.S. No. 62-A/81 since was not disturbed by this Court in S.A. No. 534/89 (Annexure-I) it would mean that the relationship of landlord and tenant continues even after the execution of alleged agreement dated 25-6-1974. Finding in C.A. No. 27-A/89 arising out of judgment-decree dated 4-8-1984 passed by Civil Judge in C.S. No. 62-A/81 since was not disturbed by this Court in S.A. No. 534/89 (Annexure-I) it would mean that the relationship of landlord and tenant continues even after the execution of alleged agreement dated 25-6-1974. With reference to judgment and decree passed by this Court in S.A. No. 425/87 arising out of judgment-decree passed by find Civil Judge Class-I, Khandwa in C.S. No. 286-A/93 a registered sale deed is to be executed by non-applicant Gajanan Pathak only after seeking partition and to the extent of his share. As against co-owner landlord late Shambhoo Prasad Pathak, L. Rs., decree would be executable only after the valid partition. So long the property has not been partitioned the applicant shall be deemed to be a tenant in the suit house. 6. The findings recorded by the First Appellate Court in F.A. No. 27-A/89 (Annexure-H) since was not disturbed by this Court in S.A. No. 534/89 (Annexure-I) it would mean that the relationship of landlord and tenant exists so long a valid conveyance vide registered sale deed by non-applicant Gajanan Pathak is not affected in favour of tenant/applicant. 7. On the basis of judgment in S.A. No. 534/89 (Annexure-I) arising out of C.S. No. 62-A/81, under section 11, Civil Procedure Code tenant/applicant cannot seek dismissal of suit C.S. No. 36-A/95 being barred under section 11, Civil Procedure Code. However, on the basis of judgment-decree in S.A. No. 425/97 he may resist the claim for eviction from the suit house. With this revision is finally disposed of. No order as to costs.