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Madhya Pradesh High Court · body

2007 DIGILAW 281 (MP)

Shanti Devi v. Jagdamba Prasad Khandelwal

2007-03-09

P.K.JAISWAL

body2007
JUDGMENT 1. This second appeal is filed by appellants against the judgment and decree dated 21.3.2006 passed by the District Judge, Gwalior in Civil Appeal No. 51-A/2005, whereby the learned First Appellate Court reversed the judgment and decree dated 30.9.2005 passed by Sixth Civil Judge, Class-II, Gwalior in Civil Suit No. 133-A/2004 and decreed the suit of the plaintiff under section 12 (1) (a) and 12 (1) (c) of the M.P. Accommodation Control Act. 2. Brief facts of the case are that the suit house No. 23/962 is owned by father of the respondent Jagdamba Prasad Khandelwal. On 11.9.1961 (Ex. P-8). Suit shop was given on rent to Banshidhar husband of the appellant No. 1 Shantidevi and his sons appellants No. 2 to 6. During the life time the appellants paid the rent to Jagdamba Prasad Khandelwal. On 27.8.1973 Jagdamba Prasad Khandelwal died. He executed a Will Ex. P-3 dated 25.8.1973 in favour of his wife Smt. Katori Bai and by virtue of said Will she became owner of the suit shop. She after death of her husband executed a rent not on 14.1.1983 (Ex. P-9). After the death of Jagdamba Prasad Khandelwal, Banshidhar husband of the appellant No. 1 and father of appellants No. 2 to 6 paid the rent to Smt. Katori Bai and last rent was paid in the month of March 1991 at the rate of Rs. 500/- per month and thereafter appellant stopped paying the rent. On 18.3.1992 Smt. Ramkatori Bai gave a registered notice and terminated the tenancy of the appellants and asked to pay the rent from April, 1991 at the rate of Rs. 500/- per month and deliver possession of the suit shop. No rent was paid nor possession was delivered and therefore, she filed a suit on 16.11.1992 for eviction on the ground of arrears of rent under section 12 (1) (a), 12 (1) (c) and 12 (1) (f) of the M.P. Accommodation Control Act, 1961. The appellants filed their written statements denied the ownership of the plaintiff in the suit house and averred that appellant No. 3 Ramdas is tenant of Radheshyam who is second son of the plaintiff. As per rent note executed between them appellant No. 3 Ramdas is paying the rent to Radheshyam who had been issuing the rent receipts. The appellants filed their written statements denied the ownership of the plaintiff in the suit house and averred that appellant No. 3 Ramdas is tenant of Radheshyam who is second son of the plaintiff. As per rent note executed between them appellant No. 3 Ramdas is paying the rent to Radheshyam who had been issuing the rent receipts. It is also averred that Banshidhar father of the appellant No. 3 was tenant of Jagdamba Prasad Khandelwal and after his death suit shop was given to Ramdas the appellant No. 3 and he is paying the rent. The appellant denied the rent note dated 14.1.1983 Ex. P-9. It is also averred that suit between the Ramkatori Bai and her sons regarding partition of the suit house is going on and since Radheshyam disputed the ownership and therefore, plaintiff is not the owner of the suit shop. 3. The trial Court vide judgment and decree dated 30.9.2005 held that appellants are tenants of Smt. Ramkatori Bai and her son Radheshyam and suit shop is jointly owned by plaintiff and Radheshyam and the same is not partitioned and therefore appellants are tenant of Radheshyam and since appellants are paying rent vide Ex. D-9 to Ex. D-10 to Radheshyam, and therefore, dismissed the suit of the plaintiffs. 4. The appellants challenged the said judgment by filing a first appeal before the Lower Appellate Court during the pendency of the appeal they filed an application under Order 41 Rule 27 of CPC vide IA No. 1 for taking notarized affidavit of Rahul Tiwari and Mohan Shivhare on record. The appellants also filed an application for taking sale deed dated 31.10.2005 executed by Radheshyam in favour of the appellant on record. The respondents opposed the said application and averred that suit for partition filed by Radheshyam vide Civil Suit No. 41-8/2005 was dismissed on 12.1.2006 by the Sixth Additional District Judge, Gwalior and Radheshyam has no right to transfer the suit property. The respondents filed another application for taking certified copy of order dated 12.1.2005 passed by Sixth Additional District Judge, Gwalior in Civil Suit No. 43-A/06 by which suit of the partition of Radheshyam was dismissed on record. During pendency of the civil suit original suit Ramkatori Bai died on 20.7.1998. The respondents filed an application for substitution of his name on the basis of Will dated 31.12.1991 (Ex. During pendency of the civil suit original suit Ramkatori Bai died on 20.7.1998. The respondents filed an application for substitution of his name on the basis of Will dated 31.12.1991 (Ex. P-2) executed by Ram Katori Bai in his favour and therefore, his name was substituted in place of Ram Katori Bai as he on the basis of said Will became the owner of the said suit shop. Lower Appellate Court rejected all the three applications i.e. IA No. 1, IA No. 3 and IA No. 5. While rejecting the application by the learned District Judge it is held that First Appeal No. 79/06 is pending before the High Court and therefore, it cannot be said that the judgment and decree dated 12.1.2006 is finally decided about the right of Radheshyam. In respect of IA No. 3 the learned District Judge has held that the question whether Radheshyam is competent to sell the suit property is not dispute in the present appeal. In the present appeal the Court has to see whether appellant No. 4 is tenant of plaintiff and whether Radheshyam is co-owner of the suit house and whether one of the co-owner can file a suit for ejectment and therefore, the relationship of landlord and tenant between the appellants and respondent has got to be determined. 5. The Lower Appellate Court after appreciating the evidence of PW 1, DW 1 and DW 2 and pleadings of the parties came to the conclusion that Banshidhar husband of the appellant No. 1 and father of the appellants No. 2 to 6 was tenant of Jagdamba Prasad Khandelwal vide Ex. P-8 dated 11.9.1961 and Jagdamba Prasad Khandelwal executed a Will in favour of his wife vide Ex. P-3 and therefore, she became the owner of the said suit house and the appellant by virtue of rent note dated 14.1.1983 (Ex. P-9) became the tenant of Smt. Ram Katori Bai and after death of Ramkatori Bai her son Jagdamba Prasad Khandelwal by virtue of Will dated 31.12.1991 (Ex. P-2) became owner of the suit shop. The Lower Appellate Court held that appellants failed to prove that after death of Jagdamba Prasad Khandelwal they became tenant of Radheshyam. P-9) became the tenant of Smt. Ram Katori Bai and after death of Ramkatori Bai her son Jagdamba Prasad Khandelwal by virtue of Will dated 31.12.1991 (Ex. P-2) became owner of the suit shop. The Lower Appellate Court held that appellants failed to prove that after death of Jagdamba Prasad Khandelwal they became tenant of Radheshyam. It is also held that Radheshyam was not owner of the suit premises and since they disputed the tenancy and ownership of the plaintiff and also failed to pay the arrears of rent from April, 1991, and therefore, granted decree under section 12 (1) (a) and (c) of the M.P. Accommodation Control Act and directed the appellant to pay arrears of rent from April, 1991 at the rate of Rs. 500/- upto 16.11.1992 and thereafter pay the mesne profit at the rate of Rs. 500/- per month. The Lower Appellate Court dismissed the suit on the ground of bonafide need and held that the respondent failed to prove his need. Lower Appellate Court allowed the appeal partly and granted decree against the appellants under section 12 (1) (a) and (c) of the M.P. Accommodation Control Act. 6. Learned counsel for the appellant challenged the decree of ejectment on the ground that suit house was owned by Jagdamba Prasad Khandelwal and after his death his widow Ramkatori Bai and his son Radheshyam jointly became the owner of the suit shop. Radheshyam in his evidence stated that Ramkatori Bai was not exclusive owner of the suit house and once the co-owner objected regarding the ownership then he was a necessary party and in support of the said arguments he placed reliance on the decision of this Court in the case of 2004 (2) JLJ 246 . His second argument was that the suit was decided against Radheshyam vide judgment and decree dated 12.1.2006 against which First Appeal No. 76/06 is pending and therefore, Court below committed error in relying the judgment and decree passed by the trial Court in Civil Suit No. 42-A/2005 and on the basis of said judgment Court below committed error in holding that respondent is the owner of the suit house. In respect of arrears of rent he submitted that as per order passed by the trial Court on 12.9.1995 he deposited the rent at the rate of Rs. In respect of arrears of rent he submitted that as per order passed by the trial Court on 12.9.1995 he deposited the rent at the rate of Rs. 125/- per month from April, 1995 and application filed by the respondent regarding striking out the defence under section 13 (6) of the Act is not maintainable and also submitted that his defence may not be struck off and if ultimately this Court came to the conclusion that rent at the rate of Rs. 500/- was not deposited by the appellants a reasonable time for payment of arrears. 7. Per contra learned counsel for the respondents supported the judgment of the Lower Appellate Court and submitted that Lower Appellate Court has not committed any error in holding that appellants are tenant of respondents and no arrears was paid with effect from April, 1991. Subhash Chandra Verma (DW 1) in his evidence stated that the deceased Banshidhar rented out the suit premises to the father of the appellants No. 2 to 4 vide Ex. P-8 on 11.9.1961 and after death of Banshidhar, Radheshyam became the owner of the suit shop as in partition the suit shop came in his share and he on 27.12.1991 executed the rent note with the appellant No. 3. He also stated that no rent was ever paid to Ramkatori Bai or Jagdamba Prasad Khandelwal. He in his cross examination admitted that he has not executed any rent note in favour of Radheshyam. He further admitted that rent note was executed by Laltaprasad, Ramjidas, Subhash Chandra and Hariom but in Ex. P-14 name of Lalta Prasad, Hariom and other witnesses are not mentioned nor their signatures are appended. Original copy of the rent note Ex. P-14 is not on record. DW 1 further admitted that he has no knowledge about the execution of rent note Ex. P-15 dated 1.5.1988 executed between Ramjidas and Radheshyam. He also admitted that rent note Ex. P-14 is in the name of Ramjidas only and in the said rent note it is not mentioned that Ramjidas executed the rent note on behalf of the joint family. In para 20 he further admitted that Ex. D-2 to D-12 name of Lalta Prasad, Prakash Chandra and Hariom is not mentioned. He also admitted that rent note Ex. P-14 is in the name of Ramjidas only and in the said rent note it is not mentioned that Ramjidas executed the rent note on behalf of the joint family. In para 20 he further admitted that Ex. D-2 to D-12 name of Lalta Prasad, Prakash Chandra and Hariom is not mentioned. He further stated in cross-examination that from 1989 on the basis of oral agreement he started paying rent to Radheshyam and for the first time he disclosed about the said rent note dated 1.5.1988 (Ex. P-15). In para 19 of his cross examination he admitted that Shantibai, Prakash Chandra, Hariom and Lalta Prasad had not executed any rent note in favour of Radheshyam and in para 25 he admitted that he has not filed any document to prove that he is the tenant of Radheshyam. He in para 54 further admitted that his father died in the year 1987-88 and that he has no knowledge that his father used to pay rent to Ramkatori Bai. 8. Radheshyam (DW 2) in para 20 of his statement admitted that Ramkatori Bai was paying the house tax of the suit shop. He never paid property tax of the suit premises. He also admitted in his statement that rent receipt was issued in favour of Ramjidas only and in the rent receipt he never mentioned that Ramjidas was paying rent as a karta of the family. Jagdamba Prasad Khandelwal (PW 1) in his statement stated that after death of Jagdamba Prasad Khandelwal his mother Ramkatori Bai became owner of the suit shop through Will executed by his father and after death of Ramkatori Bai by Ex. P-2 he became owner of the suit shop. During her life time name of Ramkatori Bai was recorded in the Municipal record as owner of the suit house and she used to pay property tax (Ex. P-6) and after her death he is paying the property tax and Ex. P-7 is the receipt. The appellant was paying the rent to Ramkatori Bai and executed the rent note dated 14.1.1983 vide Ex. P-9. He further stated that after death of Ramkatori Bai his name was mutated in the revenue record in the year 1988. Mutation notice was issued and thereafter his name was mutated. P-7 is the receipt. The appellant was paying the rent to Ramkatori Bai and executed the rent note dated 14.1.1983 vide Ex. P-9. He further stated that after death of Ramkatori Bai his name was mutated in the revenue record in the year 1988. Mutation notice was issued and thereafter his name was mutated. On the basis of above evidence it is crystal clear that appellants were tenant of Ramkatori Bai and after her death on the basis of Will Ex. P-2 respondents became the owner of the suit house. The appellants in spite of notice dated 18.3.1982 failed to pay the rent and denied the tenancy of Ramkatori Bai and Jagdamba Prasad Khandelwal. No document was filed by the appellants to prove how the suit shop came in the share of Radheshyam. Since on rent was paid and therefore respondents are entitled for the rent from April, 1991. 9. Considering the above facts and circumstances of the case I do not find that Lower Appellate Court committed any legal error in decreeing the suit of the respondents under section 12 (1) (a) and 12 (1) (c) of the M.P. Accommodation Control Act. Inspite of order of the Lower Appellate Court dated 21.3.2006 no rent was paid by the appellants. This appeal was filed on 16.5.2006 and no application was filed by the appellants for extension of time in paying the rent and when respondents filed an application under section 13 (6) of the M.P. Accommodation Control Act then only they filed an application vide IA No. 3457/07 for extension of time in paying the rent for complying the order passed by the Lower Appellate Court. Appellant continued to make default in depositing duel rent within time. No explanation for inordinate delay, nor any justifiable ground made out for interference in this second appeal. 10. Considering the above I am not inclined to extend the time for depositing the rent and therefore, IA No. 8597/06 and IA No. 10589/06 are rejected. 11. The appellate Court after considering the entire facts has recorded the finding and granted decree under section 12 (1) (a) and (c) of the Act, in which no infirmity is found. The findings recorded by the Courts below are finding of fact based on proper appreciation of the evidence on record. 11. The appellate Court after considering the entire facts has recorded the finding and granted decree under section 12 (1) (a) and (c) of the Act, in which no infirmity is found. The findings recorded by the Courts below are finding of fact based on proper appreciation of the evidence on record. In view of the aforesaid, no substantial question of law arises in this appeal and therefore, the appeal has no merit and is accordingly dismissed.