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Madhya Pradesh High Court · body

2008 DIGILAW 1343 (MP)

Pushpa Devi v. Chandra Shekhar

2008-11-18

S.K.SETH

body2008
JUDGMENT 1. This is tenants' second appeal against the reversing judgment and decree passed by the II Additional District Judge, Jaora in CRA No. 1-A/05. By the impugned judgment and decree, the findings recorded by the trial Court were set aside and the suit for eviction filed by the respondent was decreed under section 12 (1) (c) of the M.P. Accommodation Control Act, 1961 (for short 'the Act'). 2. The appeal was admitted for final hearing on the following substantial questions of law: (1) Whether the learned lower appellate Court has committed an error in holding disclaimer of title on the basis of reply P-7 and passing a decree u/s 12 (1) (c) of the Act? (2) Whether the learned lower appellate Court has committed an error in interfering in a judgment and decree passed by the trial Court on 16.2.2004 in Civil Suit No. 23/96? (3) Whether the judgment and decree passed by the learned lower appellate Court is contrary to pleading and evidence of the case and, therefore, is perverse? 3. At the commencement of the argument, learned counsel for the parties were fair enough to state that the fate of this appeal hinges upon the answer to question No.1, which is important. Accordingly, we have heard learned counsel for the parties at length. 4. Respondent herein filed a suit for eviction of the appellants from the suit premises as described in the plaint. The suit premises is situated in laora. The eviction was sought on various grounds including on the ground of section 12(1) (c) of the Act. As usual, prior to institution of the suit there were exchanges of notices and replies between the parties and in Ex. P-7 dated 19.12.1991, a reply sent by the appellants, he came out with the story of an oral agreement of sale of the suit property in his favour and as such he denied that he was occupying the suit premises as a tenant thereof. He further denied his liability to pay any rent. This led to filing of the civil suit for eviction on various grounds including a ground covered under section 12 (1) (c) of the Act. The appellant contested the suit by filing the written statement. He further denied his liability to pay any rent. This led to filing of the civil suit for eviction on various grounds including a ground covered under section 12 (1) (c) of the Act. The appellant contested the suit by filing the written statement. He further stated in the written statement that pursuant to the oral agreement of sale, the appellants had already instituted a suit for specific performance and denied that he was liable to be evicted from the suit premises. On the basis of the pleadings, issues were struck and parties went to trial and adduced their respective evidence. Pausing here for a moment, it would be relevant to point out and complete the narration of fact with regard to the suit for specific performance filed by the appellant. The trial Court refused to pass a decree for specific performance in favour of the appellants, however, directed the respondent herein to refund a sum of Rs. 10,000/- alleged to have been received by him as an advance. Against the judgment and decree passed by the trial Court in the said suit, the plaintiff as well as the defendant preferred first appeal in this Court. The first appeal preferred by the plaintiff in that suit was dismissed, however, the first appeal preferred by the defendant (present respondent) was allowed and a direction to refund Rs. 10,000/- was set aside by this Court. The judgment and decree passed by this Court had attained finality. Now coming back to the facts of the present appeal, the trial Court dismissed the suit holding that the respondent herein could not make out any ground for eviction of the appellants. Against the judgment and decree of the trial Court, respondent preferred a first appeal and the lower appellate Court by the impugned judgment and decree reversed the finding and decreed the suit under section 12 (1) (c) of the Act. 5. We have heard the rival submissions at length. Perused the material available on the record. The only question is whether through Ex. P-7 the appellants had incurred a liability for eviction. Shri Yadav, learned senior counsel submitted that appellants never denied the relationship of landlord and tenant and if Ex. 5. We have heard the rival submissions at length. Perused the material available on the record. The only question is whether through Ex. P-7 the appellants had incurred a liability for eviction. Shri Yadav, learned senior counsel submitted that appellants never denied the relationship of landlord and tenant and if Ex. P-7 is read in its proper perspective, it would only reveal that the tenant came out with the defence of an agreement of sale which by no stretch of imagination could come under section 12 (1) (c) of the Act. Hence, according to Shri Yadav, the lower appellate Court committed a grave error of law in passing a decree for eviction against the appellants under section 12 (1) (c) of the Act. On the other hand, Shri B.L. Pavecha, learned senior counsel submitted that section 12 (1) (c) is in three parts and, therefore, not only mere denial 0 title of landlord but any act which is inconsistent with the purpose for which the tenant was admitted to the tenancy of the accommodation or any act which is likely to affect adversely and substantially the interests of the landlord would also constitute a ground for eviction under section 12 (1) (c) of the Act. He invited attention of the Court of section 111 0 the Transfer of Property Act wherein a disclaimer or denial to landlord's title has been recognized as a ground for forfeiture. He also invited attention to the observations of Tindal, CJ in Deo d'Williams and Jeffery y. Cooper which has been quoted with approval in Mulla's Transfer of Property Act (Ninth Edition) -- "A disclaimer, as the word imports, must be a renunciation by the party of his character of tenant, either by setting up a title in another or by claiming title in himself." This is only a particular application of the general principle of law that a man cannot approbate and reprobate, or, as it is more familiary expressed, he cannot blow hot and cold. Section 12 (1) (c) of the Act has been considered number 0 times in 'various judicial pronouncements. In this connection, we may profitably refer to the analysis of section 12 (1) (c) made by A.P. Sen, J. (as His Lordship then was) in the case of Ghulam Mohammad v. Poonam Chand, 1969 MPLJ 843 as under: "On a plain construction of Cl. In this connection, we may profitably refer to the analysis of section 12 (1) (c) made by A.P. Sen, J. (as His Lordship then was) in the case of Ghulam Mohammad v. Poonam Chand, 1969 MPLJ 843 as under: "On a plain construction of Cl. (c) of section 12 (1), it is manifest that eviction of tenant on disclaimer of title is included within its ambit. The provision is in three parts and each of them furnishes a ground for eviction, namely, (1) where the tenant has created a nuisance, (2) where the tenant has done any act which is inconsistent with the purpose of the lease and (3) when the tenant has done any act which is likely to affect adversely and substantially the interest of the landlord thereon. It is noteworthy that this provision contemplates three different contingencies. The three clauses are separate and distinct, each being separate by the word 'or'. The third clause has done any act which is likely to affect adversely and substantially the interest of the landlord' is wide enough to include acts of denial of the landlord's title." "A denial of the landlord's title undoubtedly affects him adversely, and it also affects him substantially." 6. The view taken by Sen, J. was subsequently approved by the Division Bench in the case of Pandit Ramjilal Tiwari v. Vijai Kumar, 1970 MPLJ 50 . Thus, the law with regard to the disclaimer or denial O~ title is well established from the evidence available on the record. We are of the opinion that the lower appellate Court committed no error of law in coming to the conclusion that the appellants could not successfully establish the plea of disclaimer and as a result, he was liable to be evicted from the suit accommodation for having acted adversely against the interests of the landlord. Thus, we find no infirmity or illegality with the impugned judgment and decree. As a result, this appeal fails and is hereby dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.