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Madhya Pradesh High Court · body

2008 DIGILAW 505 (MP)

Pragati Mitra Mandai v. Manoharlal Khandelwal

2008-03-31

J.K.MAHESHWARI

body2008
JUDGMENT 1. This is defendant's appeal assailing the judgment and decree of ejectment passed by the Courts below, on the ground of section 12 (1) (f) of M.P. Accommodation Control Act. 2. It was the case of the plaintiff that by virtue of Will executed by his father Ex. P-4 dated 5.4.1998, he has become owner of the property wherein the shop admeasuring 10 x 12 square feet is situated, wherein the defendant is the tenant. The said shop is required bona fide to his daughter namely Kavita to start jewellery shop. It is also pleaded that he is not having any other alternative accommodation of his ownership suitable for her business, therefore, decree of eviction was sought for against the defendants appellants. The defendants by filing their written statement stated that on the basis of alleged Will ownership has not been proved by the plaintiff, therefore, he is not entitled to get the decree of eviction. It is further said that the plaintiff-respondent is having an alternative accommodation, which is suitable to him, therefore, the need of the plaintiff is not bona fide. In view of the said submissions prayer was made to dismiss the suit. 3. Learned trial Court has framed various issues along with the issue of bona fide requirement of the plaintiff's daughter. After appreciation of the evidence, the finding is recorded that the suit property is of ownership of the plaintiff as per Will and required bona fide for starting the business of his daughter to which he is not having any other suitable alternative accommodation available. Accordingly, decree of eviction under section 12 (1) (f) of M.P. Accommodation Control Act was passed. 4. Appeal preferred by the defendants appellants was also dismissed by the lower Appellate Court and the finding recorded by the trial Court has been confirmed. 5. Shri S.R. Saraf, learned counsel appearing for appellants has argued with vehemence that plaintiff respondent" has failed to plead non-availability of the alternative accommodation for doing the business, in absence of such pleadings and proof he is not entitled to seek decree of eviction under section 12 (1) (f). It is further urged that plaintiff is unable to prove the ownership of the said shop, therefore, also decree of eviction passed by the Courts below is unsustainable. It is further urged that plaintiff is unable to prove the ownership of the said shop, therefore, also decree of eviction passed by the Courts below is unsustainable. In support of his contention reliance has been placed on the judgment of Supreme Court in the case of Hasmat Rai and another v. Raghunath Prasad, reported in 1981 JLJ 716 = AIR 1981 SC 1711 and the judgment of this Court in the case of Hakimuddin Saifi v. Prem Narayan Barchhiha, reported in 1997 (2) MPLJ 360 . On the basis of said judgments, it is urged that until and unless the basic ingredients of section 12 (1) (f) has been pleaded and proved by the plaintiff, who requires the accommodation bona fide the decree of eviction cannot be passed. 6. In the present case, the ownership has been pleaded on the basis of Will executed by plaintiff's father to all of his sons, thereby a portion admeasuring 14.9 x 50.3 square feet was given to him wherein the suit shop of 10 x 12 square feet is situated. However, it cannot be said that the plaintiff is not the owner of the suit property. 7. Shri Saraf taking me through the statements of PW 1 and PW 2, has drawn my attention that the plaintiff is having other accommodation suitable for business, which has not been pleaded, therefore, ingredients of section 12 (1) (f) has not been established however the judgment and decree of the Courts below are liable to be set aside. 8. On the other hand Shri Sudhansu Vyas, counsel appearing for respondent submits that the plaintiff-respondent has received the total portion 14.9 x 50.3 square feet from his father as per Ex. P-4 out of which shop admeasuring 10 x 12 square feet is situated at the front portion, and remaining part of the house is being used as way to entrance in the residential premises. My attention is drawn to the map enclosed with the Will Ex. P-4 whereby the portion indicated by orange colour and pointed out by marking D was received by the plaintiff respondent through Will. The attention has also been drawn to the photographs D17, the joint reading of Will Ex. P-4 and photographs Ex. My attention is drawn to the map enclosed with the Will Ex. P-4 whereby the portion indicated by orange colour and pointed out by marking D was received by the plaintiff respondent through Will. The attention has also been drawn to the photographs D17, the joint reading of Will Ex. P-4 and photographs Ex. D-17 it reveals that pleadings as made by the plaintiff is correct because in the property, which is received to him by way of Will from his father is only 14.9 x 50.3 square feet wherein shop admeasuring 10 x 12 square feet of the tenancy of the appellants and the remaining portion is used as entering into residence. Learned Courts below have recorded the findings that alternative accommodation is not available with the plaintiff-respondent to start the business, and the rented shop has come to his title from his father. It is also held that the ownership of the father is not in dispute, who has executed the Will in favour of all four sons. Thus the ownership of plaintiff on the basis of the said Will cannot be doubted and strict proof of the said Will is not required in landlord tenant matters, however, the Courts below have rightly recorded the findings that the plaintiff respondent is owner of the suit premises and the shop in question is bona fide required for starting the business of his daughter Kavita. Judgment as relied upon by Shri S.R. Saraf having no application to the facts of the present case because in the present case it has been fully established by plaintiff that he is owner of the suit property by way of Will of his father EX.P-l. Similarly, it is pleaded by him that he is not having any alternative suitable accommodation for starting the business of his daughter, which has been found proved by the Courts below and recorded the finding concurrently on the issue. In such circumstances, the judgment as relied upon by Shri Saraf, does not help to him because in those cases plaintiff's had not pleaded and proved the ownership as well as non-availability of alternative accommodation. 9. In view of the foregoing discussions, I do not find any substantial questions of law in this appeal for consideration. Accordingly, this appeal is dismissed. 9. In view of the foregoing discussions, I do not find any substantial questions of law in this appeal for consideration. Accordingly, this appeal is dismissed. At this stage Shri S.R. Saraf counsel appearing for appellant submits that some time may be allowed to vacate the suit premises. Considering the aforesaid, it is directed that the tenant-appellant shall vacate suit premises on or before 31st December, 2008 and shall continue to deposit the rent in the Courts below till then. It is also directed that the appellant shall submit an undertaking to that effect along with a solvent security of Rs. 1,00,000/- (One Lac) for due performance of decree passed by the Courts below within the period of one month from today. On failure to submit the undertaking the respondent shall be at liberty to execute the judgment and decree passed by the Courts below. 10. In view of the aforesaid, this appeal is dismissed.