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Madhya Pradesh High Court · body

2007 DIGILAW 576 (MP)

Kandhi Lal v. Abhilash Kumar

2007-05-15

A.M.NAIK

body2007
ORDER 1. This appeal has been heard on the following substantial questions of law: "(1) Whether in absence of specifying the period of default of the payment of rent in demand notice Ex, P-4 the suit has been rightly decreed by the Courts below under ground u/s. 12 (1) (a) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to the Act)? (2) Whether in absence of any attornment by the defendant/appellant to the plaintiff the Courts below rightly decreed the suit under the ground envisaged u/s. 12 (1) (c) of the Act? (3) Whether the plaintiff who became co-owner alongwith Tara Chand may alone file suit for eviction against the defendant/appellant?" 2. Short facts involved in the appeal are that the defendant is a tenant on rent @ Rs. 15 per month in the suit premises situated at Ghamapur Chowk, Jabalpur. The property comprising the suit shop was purchased by the plaintiff from Kunwarji Sonkar vide registered sale deed dated 6.6.1983. Defendant was inducted into the suit shop by Kunwarji Sonkar. After the purchase, the defendant was apprised of the registered sale deed and the rent was demanded from him. He assured that the rent would be paid to the plaintiff. No rent was paid, consequently, notice of demand dated 24.8.1983 was issued which was served on the defendant. Arrears of rent were neither paid nor tendered in response to the demand notice. Plaintiff instituted a suit for eviction on the ground that he bona fide required the suit shop for starting the business of hotel and beetle leaves. 3. Defendant/appellant submitted his written statement refuting thereby the claim of the plaintiff. He inter alia contended that the registered sale deed dated 6.6.1983 is bogus, illegal and without authority of law. According to him, the suit shop belonged to Tara Chand Sonkar who executed an agreement of sale dated 8.8.1982 in favour of the defendant. Defendant used to pay rent to Tara Chand Sonkar alone who was the owner cum landlord. Tara Chand Sonkar did not execute the sale deed and consequently, civil suit bearing No. 72A/83 was instituted by the defendant against Tara Chand Sonkar for specific performance. It has been further pleaded that in Civil Suit No. 24A/88 a stay order was issued against alienation. Tara Chand Sonkar did not execute the sale deed and consequently, civil suit bearing No. 72A/83 was instituted by the defendant against Tara Chand Sonkar for specific performance. It has been further pleaded that in Civil Suit No. 24A/88 a stay order was issued against alienation. The alleged registered sale deed dated 6.6.1983 was executed in contravention of the stay order and the plaintiff, therefore, did not acquire title on the strength of the alleged registered sale deed. Arrears of rent as well as service of demand notice was also denied. Accordingly, it has been contended that Kunwarji Sonkar was not competent to execute the sale deed and in the absence of attornment, defendant is not the tenant of the plaintiff. 4. After recording the evidence, learned trial Judge decreed the suit on the grounds under sections 12 (1) (a) (c) and (f) of the M.P. Accommodation Control Act. 5. Aggrieved by the aforesaid, defendant/appellant preferred appeal which has been dismissed by the judgment and decree. This has been further challenged in the appeal before this Court which has been admitted and heard on the aforesaid substantial questions of law. 6. Shri Satish Shrivastava and Shri Sanjay Jain, learned counsels appearing for the parties made their submissions which have been considered in the light of the material on record. 7. Shri Satish Shrivastava, learned counsel for the appellant referring to the demand notice contained in Ex. PA contended that the period of arrears of rent was not specified in the notice, therefore, the decree for eviction under section 12 (1) (a) is not sustainable in law. Before proceeding further, I would like to take note of section 12 (1) (a) which reads as under: "that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner." 8. A bare look at the said provision makes it clear that the said provision merely requires issuance of notice demanding thereby the arrears of rent and its service on the tenant. It is not necessary at all that the period for which the tenant is in default is required to be specified in the demand notice. A bare look at the said provision makes it clear that the said provision merely requires issuance of notice demanding thereby the arrears of rent and its service on the tenant. It is not necessary at all that the period for which the tenant is in default is required to be specified in the demand notice. The provision postulates merely issuance of demand notice by the landlord and its service on the tenant. Thereafter, the tenant is obliged to pay/tender/offer the whole of arrears of rent to the landlord within a period of two months. Since the tenant is well aware of his liability to pay the rent including the arrears, it is not at all necessary to specify neither the arrears of rent nor the period for which the tenant is in arrears. If the defendant is in arrears of rent and if he is served with the demand notice in a valid manner in accordance with law, it is for him to prove that the whole of the arrears have been paid/tendered by him to the landlord within a period of two months. The defendant in paragraph 10 of his statement has clearly admitted that the acknowledgement of the demand notice contained in Annexure P-6 contains his signature. This acknowledgement is of service of demand notice (Ex. P-4) which was issued by the registered post. Admittedly, the defendant did not pay/tender the rent within a period of two months from the receipt of notice of demand. He has further not deposited the rent pursuant to section 13 (1) of the said Act. Since, he was found to be in arrears of rent and failed to pay the whole of the arrears within a period of two months, decree for eviction under section 12 (1) (a) of the M.P. Accommodation Control Act has been rightly passed. Moreover, on account of non compliance of section 13 (1) of the Act he is not entitled to the benefit of sections 12 (3) and 13 (5) of the Act and consequently, the decree for eviction granted under section 12 (1) (a) of the Act is hereby confirmed. It has been already observed above that the period of default was not required to be specified in the notice of demand and, accordingly, the same is neither invalid nor defective so as to cause its vitiation. It has been already observed above that the period of default was not required to be specified in the notice of demand and, accordingly, the same is neither invalid nor defective so as to cause its vitiation. Substantial question of law No.1 is, thus, answered against the appellant. 9. As regards substantial question of law No.2, it may be seen that defendant has not been inducted into the suit premises by the plaintiff. It is not proved that the defendant did acknowledge the plaintiff as his landlord or did pay the rent at any point of time to the plaintiff. The suit property was purchased by the plaintiff from Kunwarji Sonkar. There is no material on record to show that Kunwarji Sonkar ever informed the defendant about the sale of the suit premises to the plaintiff. This being so, the defendant was under no obligation to acknowledge the plaintiff as his landlord and to pay the rent to the latter. Claim of the plaintiff is based on derivative title and it is an admitted position in the present case that the vendor did not issue a notice to the defendant informing him about the sale of the suit premises to the plaintiff. In this view of the matter the defendant was well within his rights to dispute the derivative title of the plaintiff. Reliance may be placed on the case of Suggabai v. Smt. Hiralal [ 1969 JLJ 227 ]. The apex Court also in the case of Sheela and others v. Firm Prahlad Rai Prem Prakash [ 2002 (2) JLJ 312 ] has held that in case of derivative title the tenant may bona fide require the landlord to prove his ownership and the same does not amount to denial of title within the meaning of section 12 (1) (c) of the Act. This being so, the substantial question of law No.2 is answered in favour of the appellant. 10. As regards substantial question of law No.3, it has been contended by the learned counsel for the appellant that the plaintiff having purchased from Kunwarji Sonkar alone may be treated at the most as a joint owner and the suit at the instance of him alone is not maintainable without joinder of Tara Chand Sonkar. 11. From perusal of the sale deed Ex. 11. From perusal of the sale deed Ex. P-l it may be seen that the factum of past partition has been clearly mentioned in it which could not be proved to be unreal. After the partition, the suit property was sold to the plaintiff who became its exclusive owner. The defendant has failed to examine Tara Chand Sonkar who is stated to be a co-owner of the suit property. In the absence of opposition by Tara Chand Sonkar, his consent for eviction proceedings may be presumed and the plaintiff has thus, a right to sue the defendant. Accordingly, the substantial question of law No.3 is answered in favour of the plaintiff against the appellant. 12. In the result, the appeal fails and is hereby dismissed, however, without order as to costs.