Research › Search › Judgment

Madhya Pradesh High Court · body

2006 DIGILAW 57 (MP)

Basant Kumar Jain v. Gulab Chandra Goyal

2006-01-06

U.C.MAHESHWARI

body2006
JUDGMENT 1. The appellant-plaintiff has preferred this appeal under section 100 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 15.1.1992 passed by VIth Additional District Judge, Jabalpur in Regular Appeal No. 72-A/91 reversing the judgment and decree dated 24.8.1988 passed by the 4th Civil Judge, Class-I, Jabalpur in Civil Suit No. 44-A/87 by which the suit of the appellant was decreed under section 12 (l) (e) of the M.P. Accommodation Control Act, 1961 (for short "the Act"). 2. The facts giving rise to this appeal are that the appellant-plaintiff had filed a suit for eviction against the respondent in respect of the house No. 677 and 677/1 situated at Lordganj Jabalpur on the grounds under section 12 (l) (a), arrears of rent, 12 (l) (e) for residential bona fide genuine requirement and 12 (1) (h) of the Act for construction of the premises in question. 3. The respondent had admitted the tenancy in his written statement but the averments regarding grounds of eviction and the rate of rent have been denied. In addition to it, it was pleaded that the appellant has various alternate accommodation for his alleged need and prayed for dismissal of the suit. 4. In view of the aforesaid pleadings, the issues were framed by the trial Court. After recording the evidence, on consideration of the same by holding the tenancy of Rs.18/- per month the suit was decreed on the ground under section 12 (1) (e) of the Act while other grounds have been negatived. On appeal said decree was set aside by dismissing the suit,hence, this appeal was preferred at the instance of the plaintiff. It was admitted on following substantial question of law: "Whether the acquisition of a vacant accommodation by the son of the plaintiff disentitled him to seek eviction of his tenant under section 12 (l) (e) of the Act? 5. Mr. Rajesh Nema, learned counsel for the appellant has submitted that the accommodation of the son could not have been considered as an alternate accommodation for the appellant/landlord. It was apparent fact before the appellate Court that the alleged alternate accommodation as said by the respondent was never acquired by the appellant while the same was acquired by his children on demise of his mother by virtue of the testamentary document, the 'Will' dated 2.12.1986. It was apparent fact before the appellate Court that the alleged alternate accommodation as said by the respondent was never acquired by the appellant while the same was acquired by his children on demise of his mother by virtue of the testamentary document, the 'Will' dated 2.12.1986. According to it, the appellant has not inherited any property or accommodation of his mother Sunder Bai but the appellate Court has considered such accommodation as an alternate accommodation for the appellant contrary to law laid down by this Court on various occasions. In support of it he has placed his reliance on some decided cases and prayed for restoration of the decree of the trial Court by allowing his appeal. 6. No one has appeared on behalf of the respondent to respond the aforesaid arguments. 7. Having heard learned counsel for the appellant, on perusing the record, it appears that the accommodation acquired by the children of the appellant by virtue of said 'Will' from their grand-mother has been treated by the appellate Court as an alternate accommodation for the appellant for setting aside the decree passed by the trial Court. This Court has to decide whether the house of son or daughter or some other person of the family could be considered as an alternate accommodation for the appellant -landlord. 8. At earlier occasions this question had come up before this Court and the same was answered in the matter of Ummedmal v. Dulichand reported in [1982 JLJ (SN) 74], in which it was held as under: "As regards the requirement of the plaintiff for the suit accommodation the appellate Court on appreciation of evidence held that the plaintiff requires the suit accommodation for starting his business and he has no other accommodation for his own available to him for that purpose in the city of Indore. This is a finding of the fact based on appreciation of evidence and is binding on this Court in second appeal. The learned counsel for the appellant contended that the adjoining shop was available to the plaintiff and the plaintiff's son to whom the said shop was allotted in partition, did not enter the witness box to prove that he was carrying on his business in that shop. It has emerged in evidence that the plaintiff's son is carrying on business of electrical goods. It has emerged in evidence that the plaintiff's son is carrying on business of electrical goods. Apart from that even if the plaintiff's son is not carrying on his business in the shop which was allotted to him in the partition, the said shop cannot be held to be the accommodation of the plaintiff because after the partition title of the said shop vested in the plaintiff's son." 9. Even earlier to said case it was answered in the matter of Shivmala Tejsingh Ingle v. Ramcharan Kundanlal reported in [1980 MPLJ 530] in which it was held as under: "One of the circumstances which the appellate Court has taken into consideration negativing the need of the plaintiff is that a shop belonging to the mother of the plaintiff fell vacant and if the plaintiff was so serious about starting her business, she could have started it in that shop. As she has not done so, the need of the plaintiff is not bona fide. I fail to understand as to how a shop belonging to the mother of the plaintiff can be said to be as alternative accommodation under the Act itself. The Act says "such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the City or Town concerned". The shop belongs to the plaintiff's mother can never be said to belong to the plaintiff. Therefore, this reasoning of the appellate Court is not supported by the Act itself. On the contrary, it is against the provision of the law. To make my point further clear, I may refer to the former Act, namely the M.P. Accommodation Control Act, 1955 (Act No. 23 of 1955). In that Act, section 4 (h) refers to non-residential accommodation and it only mentioned that he or the aforesaid person of his family is not in occupation of any other accommodation in the city or the town for that purpose. In the present Act, words 'of his own' have been purposefully added and if that purpose is to be given effect to, then, in my opinion, the finding of the appellate Court that because the mother's shop was vacant and as the plaintiff has not occupied that shop, her need is not genuine cannot be accepted. In the present Act, words 'of his own' have been purposefully added and if that purpose is to be given effect to, then, in my opinion, the finding of the appellate Court that because the mother's shop was vacant and as the plaintiff has not occupied that shop, her need is not genuine cannot be accepted. I may say that the learned appellate Court has not correctly interpreted the section itself, and that being the case, I can certainly interfere with the finding given by the appellate Court." 10. This question was also considered in the matter of Raj Kumar v. Vedprakash reported in [ 1982 JLJ 451 ] in which it was held as under: "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 alternate accommodation and the appellate Court, after holding this, should have dismissed the suit of the plaintiff. To this also I 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 has produced evidence to show that the plot was purchased by wife of the plaintiff and the 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 for disallowing the claim of the plaintiff'. 11. In view of the aforesaid decisions of this Court, it is apparent that the accommodation acquired or held by the son, mother or wife or any member of the family of appellant plaintiff, could not be termed to be an alternate accommodation for the appellant. 12. 11. In view of the aforesaid decisions of this Court, it is apparent that the accommodation acquired or held by the son, mother or wife or any member of the family of appellant plaintiff, could not be termed to be an alternate accommodation for the appellant. 12. Therefore, it is held that the appellant's claim could not be defeated by taking the accommodation of his son in consideration as an alternate accommodation. Resultantly, the question is answered in negative and also against the respondent. 13. In view of the aforesaid answer the decree passed by the appellate Court is held erroneous, perverse and contrary to settled legal position, thus, the same is not sustainable under the law. 14. Hence, this appeal is allowed and the judgment and decree passed by the appellate Court is hereby set aside by restoring the judgment and decree of the trial Court. There shall be no order as to costs. 15. The decree be drawn up accordingly.