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2005 DIGILAW 1173 (MP)

Satish Kumar Jain v. Durgabai

2005-11-22

U.C.MAHESHWARI

body2005
JUDGMENT 1. An unsuccessful appellant-defendant has tiled this appeal u/s 100 of the Civil Procedure Code being aggrieved by the judgment and decree dated 17.9.1998, passed by the IV Additional District Judge, Sagar, in Civil Regular Appeal No. 23-A/1998, whereby the judgment and decree dated 20.3.1998 passed by the Third Civil Judge Class-II, Sagar, in Civil Suit No. 48-A/93 for eviction against the appellant, has been affirmed by dismissing his appeal. 2. The facts giving rise to this appeal are that respondents had filed a suit for eviction against the appellant on the grounds available u/s 12(1)(a), (c), (e) and (h) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as "the Act") for the arrears of rent, disclaimer of title of the respondents, bona fide genuine requirements and also on requirement for repairing and reconstruction of the entire premises including the tenanted accommodation. 3. By filing the written statement on behalf of the appellant, it is stated that appellant was not bound to pay the rent to respondents as he is not the tenant of them. The amount of rent has clearly been deposited in Civil Suit No.81-A/91 filed by the predecessor of the respondents. The existence of the grounds for eviction as mentioned in the plaint are also denied. It is also stated that the instant suit is based on derivative title acquired by respondents from one Dwarka Prasad vide sale-deed dated 19th February 1992, prior to this transaction, a suit for eviction filed by the said Dwarka Prasad remained pending thus respondents are not entitled for any relief and prayed for dismissal of the suit. 4. That in view of the pleadings of the parties issues were framed and the evidence was recorded and on appreciation of it, by holding the relationship in between the respondents and appellant as landlord and tenant, the suit was decreed by the trial Court on grounds u/s 12(1)(a), (c), (e) and (h) of the Act alongwith amount of arrears of rent. On filing the appeal by the appellant the appellate Court has set aside the finding of the trial Court regarding section 12(1)(c) of the Act but the appeal was dismissed by upholding the decree on other grounds. Hence, this appeal is preferred at the instance of appellant-tenant. 5. On filing the appeal by the appellant the appellate Court has set aside the finding of the trial Court regarding section 12(1)(c) of the Act but the appeal was dismissed by upholding the decree on other grounds. Hence, this appeal is preferred at the instance of appellant-tenant. 5. The instant appeal was admitted for final hearing on dated 13.11.1998 on the following substantial question of law : Whether the respondents could claim eviction of the appellant on the grounds of bona fide requirement u/s 12(1)(e) and 12(1)(h) of M.P. Accommodation Control Act, 1961 ? 6. Shri P.S. Das, learned counsel for the appellant has submitted that the suit tiled by the earlier landlord remained pending even after transferring the property to respondents. In view of pendency of the earlier suit the instant suit at the instance of respondents was not maintainable. He further submits that the requirement of the accommodation as pleaded by the respondents is not genuine or bona fide as they have various alternate accommodation for the pleaded requirement. He also submitted that all respondents being women are residing with their husbands and other family members in ancestral house of their husbands or other members of family but this aspect was not considered while passing the decree u/s 12(1)(c) by Courts below. He also advanced the argument that in the absence of the admissible cogent evidence no decree could have been passed u/s section 12(1)(h) of the Act. According to his submissions, in view of the pleadings and the evidence decree passed by Courts below on this ground is not sustainable. He has also submitted that decree on aforesaid both the grounds are not sustainable as prayed by the respondents. 7. While responding the aforesaid arguments, Shri Aadil Usmani, learned counsel for the respondents has submitted that decree passed by the Courts below are based on sound principle of law and also on proper appreciation of the evidence. He further submitted that in view of concurrent findings of both the Courts below regarding their bona fide genuine requirement under section 12(1)(e) of the Act and also on ground of requirement for construction and repairing the premises of the accommodation in question are the findings of fact it does not give rise to any substantial question of law. He further submitted that in view of concurrent findings of both the Courts below regarding their bona fide genuine requirement under section 12(1)(e) of the Act and also on ground of requirement for construction and repairing the premises of the accommodation in question are the findings of fact it does not give rise to any substantial question of law. Thus, impugned decree cannot be interfered or disturbed in the second appeal and prayed for dismissal of the appeal by placing his reliance on decided cases in the matter of Madan Singh and others v. Sudhir Kumar Agrawal [2004(4) MPHT 28 (CG)]. In addition of it, he has also submitted that ground u/s 12(1)(e) and 12(1)(h) of the Act could be taken simultaneously in one suit for this he placed his reliance on a decided case in the matter of Habib Hasan v. Joseph Nathanial & 5 others reported in 2002(1) MPJR Short Note 29. 8. Having heard the learned counsel, for considering their submission I have perused the records of the Courts below, it is apparent that the concurrent findings regarding bona fide genuine requirement and the requirement for rebuilding and repairing which could not be carried out without vacating the premises have been given by both the Courts below. Such aforesaid findings are not inconsistent with the evidence available on, record. I have not found any circumstance which shows that the respondents are having any other alternate accommodation in the same town for alleged requirement and all these findings being finding of fact cannot be disturbed by re-appreciating the evidence. Besides this for the sake of arguments if the version of the appellant is taken into consideration then according to him, the other alternate accommodation in which respondents are residing are not under the ownership of them. Now it is a settle position that house of the joint property of family is not an alternate accommodation as decided by this Court in the matter of Sushila Devi v. Maharaja Singh Devilsingh, reported in 1990 MPLJ 445 , in which it is held as under : "21. The plaintiff should have been held not possessed of an alternative accommodation suitable for her residence, on the facts found. The house wherein she is presently residing, does not exclusively belong to her. She has only 1/6 title therein. She wishes to occupy her own house along with her own family members. The plaintiff should have been held not possessed of an alternative accommodation suitable for her residence, on the facts found. The house wherein she is presently residing, does not exclusively belong to her. She has only 1/6 title therein. She wishes to occupy her own house along with her own family members. The need cannot be said to be non-genuine and it is no answer to her requirement that she can carry on well in a house which is also owned by her co-owners of 5/6tj share." 9. In the matter of Rajkumar v. Vedprakash reported in 1982 JLJ 451 in which it is held as under : "15. The next submission made before me is that the property on which the Allahabad Bank stands and the building itself should be considered as an alternative accommodation and the appellate Court, after holding this, should have dismissed the suit of the plaintiff. To this also cannot agree. To this, the simple answer is that the property belongs to the wife of the plaintiff and it cannot be termed to be his own. The bare reading of the section itself shows that the alternative accommodation should be that of the landlord himself and that is not the case here. It was contended before me that when the registration of the sale-deed of the plot took place, plaintiff himself was present and he has taken active part in purchasing the property and getting the building of Allahabad Bank constructed. But, this is not borne out from the facts and the evidence produced in the file. The plaintiff and wife of the plaintiff has mortgaged the property with the Allahabad Bank. That being the case, I am of the view that it cannot be termed to be an alternative accommodation and that will not be a ground of disallowing the claim of the plaintiff." 10. In the aforesaid case the house of the wife was not found as alternate accommodation for the husband thus the plea as advanced by the appellant is not appealable and sustainable. Thus, it is failed on this count also. 11. The apex Court has given its verdict in the matter of Dr. Ranbirsingh v. Asharjilal reported in (1995)6 SCC 580 , that findings on the ground of bona fide genuine requirement is a finding of fact. In this decision it is held as under : "14. Thus, it is failed on this count also. 11. The apex Court has given its verdict in the matter of Dr. Ranbirsingh v. Asharjilal reported in (1995)6 SCC 580 , that findings on the ground of bona fide genuine requirement is a finding of fact. In this decision it is held as under : "14. Sub-section (1) of section 100 of the Code of Civil Procedure contemplates that an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. Sub-section (4) of section 100 further provides that when the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. But it may be pointed out that the High Court formulated no such question of law on basis of which it proposed to interfere with the findings of facts. It has been the consistent view of this Court that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, based upon an appreciation of the relevant evidence. There is a plethora of case-law in support of this view. To quote a few, references may be made to the decision in V. Ramachandra Ayyar v. Ramalingam Chettar [ AIR 1963 SC 302 ; All LJ 67; (1963)1 Andh LT 86], wherein this Court took the view that even if the appreciation of evidence made by the lower appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure and the High Court cannot interfere with the conclusions of fact recorded by the lower appellate Court. This view has been reiterated by this Court in Bhagwan Dass v. Jiley Kaur [1991 Supp. (2) SCC 300; AIR 1991 SC 266 ]. This being the position, the High Court was not justified in re-appreciating the evidence and substituting its own conclusions for the well-reasoned findings recorded by the Courts of fact." 12. The aforesaid view was adopted by this Court in the matter of Ashok and others v. Shakuntala Bai and Shantilal Jain and others reported in 2004 Vol.-I MPHT 417 in which it is held as under : "3. The aforesaid view was adopted by this Court in the matter of Ashok and others v. Shakuntala Bai and Shantilal Jain and others reported in 2004 Vol.-I MPHT 417 in which it is held as under : "3. It is now a too well settled principle of law laid down by the Supreme Court in series of cases and which is being consistently followed by the High Courts as law laid down under Article 141 of Constitution of India that a question of bona fide need set up by the plaintiff (landlord) whether for residential purpose or non-residential, is a question of fact. It is only when the findings so recorded on this issue is found to be de hors the pleading or against the evidence led or is based on no evidence, or is against the statutory requirement of law [12(1)(f) of the Act], or it is so bad that no judicial man can ever reach to it's conclusion, then such findings is amenable to interference in second appeal. When I examine the facts of the case keeping in view these parameters then I am unable to notice any such infirmity in the impugned judgment and hence, it deserves to be upheld." 13. Landlord-respondents have right to file the suit for eviction on the ground of bona fide genuine requirement for residential and/or nonresidential purpose alongwith the ground of rebuilding or repairing which cannot be carried out without vacating the premises in one suit as laid down by this Court in the matter of Habib Hasan v. Joseph Nathanlal and 5 others reported in 2002(1) MPJR Short Note 29 in which it is held as under : "However, advocate for the appellant has claimed that the grounds under section 12(1)(e) and (h) are mutually restrictive. Both cannot exist together. Either the landlord can need the house for his residence or he can need the same for reconstruction. It is also claimed that the right of tenant under section 18 of the Act could be frustrating in case both these grounds for eviction are upheld. He has relied upon Smt. Pareswari Devi v. Thakur Nathu Singh [(1998)8 MPRCJ 462], the judgment of a Single Judge, However, this is not the preponderate view. It is also claimed that the right of tenant under section 18 of the Act could be frustrating in case both these grounds for eviction are upheld. He has relied upon Smt. Pareswari Devi v. Thakur Nathu Singh [(1998)8 MPRCJ 462], the judgment of a Single Judge, However, this is not the preponderate view. The apex Court in Ramnikram Pitamber Das Mahta v. Indrabha Bhuwan Amreitlal Seth [ AIR 1964 SC 1676 ] and K.S. Nathbai Anthappai v. C. Ahmed [ AIR 1992 SC 1696 ] has held otherwise. In Radheshyam v. Kalyanmal [1985 JLJ 302=1985 MPLJ 112], this Court has taken the opposite view. Of course the landlord can need the house for living in the same after reconstruction. Both grounds are neither destructive of each other nor are materially exclusive. Need shown for starting business after reconstruction was basically considered a need under section 12(1)(f) of the Act. Kalender Khan v. Mani Saqrani [1979(2) MPRCJ 1917], Nariuddin v. Hiramal [1979 MPRCJ NOC 141], Nathuram v. Udaychand [1976 MPWN 6]. In such a case, the tenant has no choice of re-entry under section 18 of the Act. Jamaluddin v. Purushottam [1997 MPRCJ 401], Union of India v. Chatarbhuj [19930) MPWN 101], Radheshyam v. Durgabai [ AIR 1985 SC 139 ]. In view of overwhelming authorities of apex Court and this Court, the argument of the appellant does not hold good that the landlord cannot claim eviction on both the grounds under section 12(1)(e) and (h) of the Act." 14. In view of the aforesaid discussion it is apparent that finding on section 12(1)(e) and 12(1)(h) as given by the Courts below being concurrent findings of fact. Thus, it cannot be interfered at this stage u/s 100 CPC in second appeal. Thus, my answer is affirmative in relating to the framed question of law that respondents suit could be decreed on aforesaid both grounds available under the Act therefore the Court below have not committed any error in deciding the same. 15. Thus, this appeal has no merits resultantly it is dismissed, but there shall be no orders as to the costs. Decree be drawn accordingly.