Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 1237 (MP)

Sabirmohd v. Maganlal

2010-12-15

U.C.MAHESHWARI

body2010
ORDER U.C. Maheshwari, J. 1. The Appellant/defendant has directed this appeal under Section 100 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 23.2.99 passed by the District Judge, Sagar in regular civil appeal No. 24-A/97 reversing the judgment and decree dated 17.3.98 passed by III Civil Judge Class-I Sagar in original civil suit No. 98-A/97, dismissing the suit of the Respondent filed against him for eviction on the grounds enumerated under Section 12(1)(a),(c)and (i) of the M.P. Accommodation Control Act, 1961 (In short 'the Act'),by allowing the appeal of the Respondents, such suit has been decreed on all the aforesaid grounds. 2. The facts giving rise to this appeal in short are that initially one Babulal Shrivastava, the predecessor-in-title of the Respondent filed the impugned suit against one Noor Mohammad, the father of the Appellant for eviction with respect of the disputed premises situated in H. No. 329, Krishnaganj ward, Sagar contending that said Noor Mohammad, being monthly tenant of the principal Plaintiff Babulal, was in occupation of the disputed premises for residential purpose at the rate of Rs. 20/- per month. Subsequent to death of Noor Mohammad, his son, the Appellant, has become the tenant of said Babulal on the same terms. As per initial pleading, Noor Mohammad being defaulter in payment of the rent, even on making the demand, had not paid the same for the period between 1.11.75 to 30.4.78 near about 30 months, on which, after giving the demand notice dated 13.5.78 the tenancy of said Noor Mohammad was also terminated on expiry of the tenancy month on dated 31.5.78. Inspite service of such notice, neither the arrears of rent was paid nor the premises was vacated, on which, initially the suit was filed on the ground of arrears of rent under Section 12(1)(a) of the Act. It is also pleaded that said notice was also given to the present Appellant as he was also residing in such premises with the Noor Mohammad since 1974. 3. In the initial written statement filed with the signature of the Noor Mohammad, the relationship of the landlord and tenant between the parties along with the other averments of the pleading are denied. 3. In the initial written statement filed with the signature of the Noor Mohammad, the relationship of the landlord and tenant between the parties along with the other averments of the pleading are denied. In special pleading it is stated that before 4-5 years from the date of filing the written statement, the Defendant was in possession of three rooms of some house of the Appellant as tenant, at the rate of Rs. 25/- per month. In such house he was inducted before 15 years. Before 4-5 years as stated above, said Babulal asked him to vacate the premises as he was selling the same, on which, immediately it was vacated by the Defendant and started to reside in some other house. It is also stated that the Defendant is neither in possession of the disputed premises nor the tenant of the Appellant, in fact, some Mohd. Sabir, the driver, is residing in the disputed premises. The suit has been filed with the false averments and the prayer for dismissal of the same was made with cost of Rs. 200/-. 4. After death of Noor Mohammad, the present Appellant was substituted as Defendant on the record, thereafter he also filed the additional written statement, in which, by denying the relationship of the landlord and tenant between the Respondent and him, all the terms and condition of the tenancy were also denied. The averments regarding demand notice are also denied. In the special pleadings it is stated that said Noor Mohammand, before 4-5 years from the date of filing the impugned suit, was in possession of three rooms of the House of the Respondent at the rate of Rs. 25/- per month in which he was inducted as tenant before 20 years but, on asking by the Respondent before 4-5 years from the date of filing the impugned suit, to vacate the premises, the same was vacated by the Appellant, thereafter such part of the house was sold by the Respondent. It is also stated that as per contention of the Respondent/plaintiff when Late Noor Mohammad was the tenant of the Respondent in the disputed premises till his death then according to the provision of the Muslim Personal Law, the Appellant being his heir and legal representative has become the tenant in the premises. It is also stated that as per contention of the Respondent/plaintiff when Late Noor Mohammad was the tenant of the Respondent in the disputed premises till his death then according to the provision of the Muslim Personal Law, the Appellant being his heir and legal representative has become the tenant in the premises. In continuation it is stated that without impleading all the legal representatives of Noor Mohammad, the impugned suit is not maintainable. As such the same is liable to be dismissed on account of non-joinder of the necessary parties and prayer for dismissal of the suit was made. 5. In pendency of the suit, the principal Plaintiff Babulal also died, on which, his widow Brijrani and the present Respondent MaganLal were substituted as his legal representatives at his place and at subsequent stage said Brijrani also died, on which, her name was also deleted from the record. 6. In view of the pleadings of the parties, as many as five issues were framed on dated 17.4.82, on which, the evidence was recorded. On appreciation of the same in the first inning of the case, the suit was dismissed by the trial court vide dated 18.7.94, on which, the Respondent and his mother went up in Civil Regular Appeal No. 37-A/94 before the Ivth Add. District Judge, Sagar. On consideration, vide judgment dated 28.10.96, by allowing some amendment application of the Respondents/ Plaintiffs for inserting the grounds of eviction available under Section 12(1)(c) and (i) and, also by setting aside the aforesaid judgment of the trial court, the case was remitted back to the trial court with a direction to decide afresh after extending the opportunity of hearing to the parties. In view of the aforesaid amendment in the plaint, the Appellant/defendant also amended his written statement and denied the averments of amended grounds of eviction enumerated under Section 12(1)(c) and (i) of the Act the denial of title and Appellant/defendant has acquired his own suitable accommodation for his residential need. In view of the aforesaid amendment in the plaint, the Appellant/defendant also amended his written statement and denied the averments of amended grounds of eviction enumerated under Section 12(1)(c) and (i) of the Act the denial of title and Appellant/defendant has acquired his own suitable accommodation for his residential need. After remitting back the matter, in view of such subsequent amendment in the pleadings, the additional two issues bearing No. 6 and 7 were framed by the trial court vide dated 16.2.1998 and after extending the opportunity of hearing and recording the evidence, in compliance of the aforesaid appellate court order, on appreciation of the evidence, by holding that Respondent and his widow mother has failed to prove the relationship between them and the Appellant as landlord and tenant and, in such premises dismissed the suit on all the grounds raised by the Respondent/plaintiff. Being aggrieved by such impugned judgment and decree of the trial court, the Respondent/ Plaintiff again approached the subordinate appellate court with the appeal under Section 96 of the Code of Civil Procedure. On consideration, by re-appreciating the evidence available on the record including the ex-parte statement of Babulal recorded before passing the ex-parte decree which was later set aside by holding the relationship between the Respondent and the Appellant as landlord and tenant, decreed the suit of the Respondent on all the aforesaid grounds enumerated under Section 12(1)(a),(c) and (i) of the Act, on which, the Appellant has come forward to this Court with this appeal. 7. It is noted that this appeal is pending before this Court for admission since the year 1999. At the initial stage of the appeal, the interim stay was granted on 23.4.99. Subsequent to this, the case was listed on 5.5.99 and 6.10.99 and thereafter it was listed for admission only on 1.12.2010, on which, the arguments on admission has been heard. 8. The appearing counsel of the Appellant, after taking me through the pleadings, available evidence and the exhibited documents said that in the available circumstances, the appellate court has committed grave error in allowing the suit and passing the decree of eviction against him on the grounds available under Section 12(1)(a),(c) and (i) of the Act. On proper appreciation of the available evidence and the circumstances, the appellate court ought to have affirm the findings of the trial court by dismissing the appeal of the Respondents. On proper appreciation of the available evidence and the circumstances, the appellate court ought to have affirm the findings of the trial court by dismissing the appeal of the Respondents. In continuation he said that in the lack of any legal and admissible evidence proving the relationship between the parties as landlord and tenant, the appellate court has held such relationship on the basis of the deposition of the principal Plaintiff Babulal which was recorded, ex-parte at the initial stage of the case, on which, some ex-parte judgment and decree was passed which was later-on set aside. Such statement was taken into consideration by the appellate court under the garb of Section 33 of the Evidence Act when in the available circumstances by virtue of such section of the Evidence Act after setting aside the ex-parte judgment in the matter such deposition of Babulal could not be read for any purpose unless in the lifetime of the deceased Babulal, the same was confronted with him on his examination. So, firstly he prayed for admission of this appeal on the question that in the lack of any admissible and reliable evidence, the appellate court has wrongly held the relationship between him and the Appellant as landlord and tenant. He further argued that in the lack of such relationship, even on denying the title and the payment of the arrears of rent and also on acquisition of the Sufficient suitable accommodation by the Appellant for his residence, the suit could not be decreed on the grounds enumerated under Section 12(1)(a),(c) and (i) of the Act. With these averments, he prayed for admission of this appeal on the proposed substantial questions of law mentioned in the appeal memo. 9. Having heard the counsel, keeping in view his argument, after perusing the record of the courts below along with the impugned judgment, I am of the view that the appellate court has not committed any error in setting aside the judgment and decree of the trial court and decreeing the suit of the Respondent against the Appellant on the grounds available under Section 12(1)(a),(c) and (i) of the Act by holding the relationship between them as landlord and tenant. 10. 10. True it is that the appellate court holding such relationship between the parties, taking into consideration the ex-parte deposition of the principal Plaintiff Babulal, on which, at the initial stage of the suit some ex-parte judgment and decree was passed but later-on the same was set aside and case was proceeded bi-parte. In pendency of the suit, the principal Plaintiff Babulal died and he was not available at subsequent stage for his examination and, therefore, it appears that the appellate court has taken into consideration his deposition keeping in view his last version with respect of the disputed premises in his lifetime and, in such premises Section 33 of the Evidence Act was also referred by the appellate court. In any case in the available circumstances and, in view of the admission of the principal Defendant in his initial written statement as well as the admission of the present Appellant in his written statement in which they categorically stated that before 4-5 years from the date of the suit they were residing as tenant in three room of the principal Plaintiff and at the request of the principal Plaintiff they have vacated the same and shifted to some other house of the principal Plaintiff. So as tenant, the Appellant and his predecessor-in-title were shifted by Babulal in some other premises as tenant. When the other accommodation, in which, according to case of the Appellant, they were the tenant of the Respondent then in view of such admission on behalf of the Appellant there was no occasion before both the courts below holding that there was no relationship between the principal Plaintiff and the principal Defendant and subsequent to them between their respective legal representatives, the Appellant and the Respondent. Besides this, on recording the deposition of Mohd. Sabir (D.W.1) he categorically admitted that the house in which the disputed premises is situated, is a property of the Respondent and his father. He also admitted the tenancy of the aforesaid three rooms with the Respondent and on vacating the same in continuation of such tenancy the Appellant and his father were shifted in some other house. The disputed accommodation was claimed by the Appellant as owner of it. According to him, the same was given by Babulal to him as owner in consideration of vacating the earlier tenanted premises of three rooms. The disputed accommodation was claimed by the Appellant as owner of it. According to him, the same was given by Babulal to him as owner in consideration of vacating the earlier tenanted premises of three rooms. It is apparent on record that in support of such contention to prove the ownership of the Appellant over the disputed premises no admissible evidence is available on the record. In the lack of it, it could not be deemed that the Appellant or his father were remained in possession of the disputed premises as owner or other wise. In any case, in the available circumstances, it could be deemed that the Appellant through his father was either the tenant of the Respondent in the disputed premises or he was in permissive possession of the principal Plaintiff as licensee. There is no any other circumstance on the record to draw the inference that Appellant was remained in possession of the same as owner of it. 11. The aforesaid admissions of the principal Defendant in his written statement and also the admission by Mohd. Sabir in his deposition admitting the tenancy of the Appellant, by virtue of the provision of Section 21 and 58 of the Evidence Act, is binding against him, therefore, in any case, after admitting, the relationship as tenant of the Respondent or his father the Appellant is estopped to challenge the title of such Respondent landlord but it is apparent from the written statement and the deposition of the Appellant that inspite having knowledge of the aforesaid relationship and right of the Respondent, the Appellant had denied the same and thereby challenging the title of the Respondent, the Appellant has become nuisance in such premises for the Respondent. Therefore the impugned decree under Section 12(1)(c) could not be held to be contrary to law. 12. It is also apparent on record that, at any point of time, either before filing the suit or in pendency of the suit, in both the innings, as per findings of the subordinate appellate court, no dues of the rent was deposited by the Appellant while it was known to him that he was the tenant at the rate of Rs. 20/- per month in the disputed accommodation inspite it he has committed default in that regard therefore, in view of the law laid down by the Apex Court in the matter of Jamnalal and Ors. 20/- per month in the disputed accommodation inspite it he has committed default in that regard therefore, in view of the law laid down by the Apex Court in the matter of Jamnalal and Ors. v. Radheshyam (2000) 4 SCC 380 , the impugned decree on the ground under Section 12(1)(a) of the Act could not be said to be illegal or contrary to any law. There is sufficient evidence on the record showing that in pendency of the suit, the Appellant has acquired the alternate houses for his residence in the same town. In such premises the impugned decree passed on the ground of Section 12(1)(i) of the Act could not be termed to be faulted. 13. In view of the aforesaid discussion, the ultimate approach of the appellate court in setting aside the decree of the trial court and decreeing the suit of the Respondent on the aforesaid grounds by holding the relationship as landlord and tenant between them, do not appear to be perverse or contrary to any existing law. In such premises, I have not found any question of law rather than substantial question of law for admission of this appeal. 14. Apart the above, for the sake of the argument, if it is deemed that the Respondent could not establish the relationship of the landlord and tenant between him and the Appellant and only admitted the title and the ownership of the Respondent with respect of the disputed property even then in view of the principle laid down by the Apex Court in the matter of Bhagwati v. Chandramaul- AIR 1966 SC 735 , in the lack of proof of relationship as landlord and tenant, on the strength of the title, the decree for eviction could be passed in favour of the landlord. Such principle was laid down by the Apex Court in the following manner: In a suit for ejectment the Defendant admitted the title of the Plaintiff in regard to the plot and pleaded that he was to remain in possession of the house until the amount spent by him in its construction was returned by the Plaintiff. The Plaintiff led evidence about the tenancy set up by him and the Defendant led evidence about the agreement on which he relied. The Plaintiff led evidence about the tenancy set up by him and the Defendant led evidence about the agreement on which he relied. Both the pleas were clear and specific and the common basis of both the pleas was that the Plaintiff was the owner and the Defendant was in possession by his permission. In such a case the relationship between the parties would be either that of a landlord and tenant, or that an owner of property and a person put into possession of it by the owner's licence. No other alternative was logically or legitimately possible. Held that in absence of proof of tenancy and of Defendants agreement the conclusion of the High Court in first appeal that the Defendant was in possession of the suit premises by the leave and licence of the Plaintiff, did not cause prejudice to Defendant. There was no error of law if the decree for ejectment was passed F.A. No. 564 of 1958 dated 14-12-1962 (All). Affirmed 15. In the aforesaid premises also the impugned judgment of the appellate court is not giving rise to any substantial question of law in the matter for consideration under Section 100 of the Code of Civil Procedure. I would like to mention here that in the course of argument, Appellant's counsel cited the case law in the matter of V. M. Mathew v. V. S. Sharma and others- AIR 1996 SC 109. On going through the same, I have found that the same is based on some different facts and circumstances and some different law is laid down in that case, therefore, the same is not helping to the Appellant. 16. In the aforesaid premises, I have not found any perversity, infirmity or any substance or circumstance in the impugned judgment of the appellate court giving rise to any substantial question of law requiring any consideration at this stage under Section 100 of the Code of Civil Procedure. Consequently, this appeal being devoid of such question, deserves to be and is hereby dismissed at the stage of motion hearing.