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Madhya Pradesh High Court · body

2010 DIGILAW 840 (MP)

Mool Chand Rajak v. S. P. Kapoor

2010-08-18

U.C.MAHESHWARI

body2010
JUDGMENT : The appellant/plaintiff has preferred this appeal under, section 100 of the Civil Procedure Code being aggrieved by the judgment and decree dated 1-2-2006 passed by Additional District Judge Sohagpur, District Hoshangabad in regular Civil Appeal No. 27-A/05 upholding the judgment and decree dated 30-7-2005 passed by Civil Judge Class-I Pipariya in Civil Original Suit No. 4-A/01 whereby, dismissing the suit of the appellant filed for declaration and perpetual injunction, the counter-claim of the respondents No. 6 and 7 filed for eviction of the appellant from the disputed premises had been decreed. 2. Facts giving rise to this appeal in short are that the appellant/plaintiff herein filed the suit against the respondents for declaration, perpetual injunction and mandatory injunction with respect of the house situated at Pachmarhi on 1385.33 Sq.ft. land of Survey No. 93/791 and 93/790(A) contending that he is in occupation of such house from the time of his forefather since last 70 years as tenant of Kamla Patel and after her demise, the same was inherited by the respondents No. 1 and 2 and on their behalf by giving the receipt the respondent No. 3 is receiving the rent. As per further pleadings, the appellant family being in possession of the house since long having sentimental attachment with it, was interested to purchase the same. Therefore, appellant and his daughter-in-law had intimated the respondent No. 1 and 2 regarding such wish, but no response was given by the respondents No. 1 and 2. In spite of aforesaid intimation such house was sold by the respondents to respondents No. 6 and 7 vide registered sale deed dated 31-8-2001. As per custom prevailed in the area of Panchmarhi, on selling the house by the landlord, the tenant of the premises had preemption right to purchase the same. Therefore, the aforesaid sale deed executed by the respondents No. 1 to 5 in favour of respondents No. 6 and 7 being ab initio void is not binding against the appellant. With these pleadings the aforesaid suit with the prayer of declaring the appellant had a preemptory right to purchase the disputed property with a further prayer for issuing perpetual injunction restraining the respondents to sell the aforesaid house along with a mandatory injunction directing the respondents not to sell the aforesaid house to any other person except the appellant, is filed. 3. 3. In the joint written statement of the respondents, it is stated that such house is not situated on the area as stated in the plaint, but the same is situated on 1,000 Sq. ft. of land. As per further pleadings, the appellant and his family members were residing in their own house situated adjoining to the aforesaid disputed house. The disputed house was belonging to respondent No. 1 to 5 and on their terms under intimation to the appellant they had sold the same in consideration to respondents No. 6 and 7 vide registered sale deed dated 31-8-2001. It is also stated that the appellant and his daughter-in-law shown their interest to purchase the same in consideration of Rs. 3,00,000/- while, the same was sold to respondents No. 6 and 7 in consideration of Rs. 4,38,000/-. The suit is not valued in accordance with law on market value of the disputed house and on carrying out the valuation in such manner then, the same is not falling under the territorial jurisdiction of the trial Court. With these submissions the prayer for dismissal of the suit is made. Simultaneously, on behalf of respondents No. 6 and 7 a counter-claim was also filed against the appellant contending that the appellant being monthly tenant of respondents No. 1, 2, 4 and 5 @ Rs. 230/- per month was in occupation of the aforesaid premises for residential purpose. As per further averments on purchasing the house by the respondents No. 6 and 7 by aforesaid registered sale deed, the appellant has become their tenant on the same terms in such house. Before execution of the sale deed, an intimation in that regard was given by the respondent No. 2 to the appellant and his daughter-in-law and even subsequent to execution of the sale deed, the respondents No. 6 and 7 intimated the appellant about acquisition of the title in such property with a further intimation to pay the rent of such premises to them vide notice dated 10-6-2002 Ex.D/1. The same was served on him vide Ex.D/3. Subsequently, by another notice dated 10-9-2002 Ex. The same was served on him vide Ex.D/3. Subsequently, by another notice dated 10-9-2002 Ex. D/4 by making the demand of the outstanding rent the appellant was informed to vacate the premises on the ground that he had acquired sufficient accommodation of his own on Patel Road Pachmarhi for the residence of his family and his aforesaid tenancy was also terminated at the end of tenancy month on 30-9-2002 the same was also served. In spite service of such notices on appellant, none of them was replied by him. With these pleadings the counter-claim for eviction of the appellant from the disputed premises on the grounds available under sections 12(1)(a) and 12(1)(i) of the M. P. Accommodation Control Act, 1961, (In short 'the Act') is filed with the written statement. 4. In response of aforesaid counter-claim of respondents No. 6 and 7 in rejoinder of the appellant, it is stated that such claim of the respondents is not entertainable because the same is filed without mentioning any cause of action. Such respondents are not in bona fide need of such accommodation. Before selling such house, no intimation was given to the appellant. The averments about giving offer to the appellant and his daughter-in-law to purchase the disputed house is wrongly mentioned as no such offer to purchase the property on such consideration was given. The rent of the disputed accommodation was regularly paid to the respondent No. 3. Even on tendering the rent of the accommodation to the respondents No. 6 and 7 they refused to accept the same on which, Rs. 2,530/- was sent through money order to respondent No. 3. As per further averments the alleged tenancy of the appellant could not be terminated by the respondents No. 6 and 7. It is further stated that in pendency of the suit Rs. 2,990/- the sum of the rent has been deposited in the Court and prayer for dismissal of the counter-claim with a prayer to award him the cost of Rs. 1,000/- is made. 5. It is further stated that in pendency of the suit Rs. 2,990/- the sum of the rent has been deposited in the Court and prayer for dismissal of the counter-claim with a prayer to award him the cost of Rs. 1,000/- is made. 5. In view of pleadings of the parties after framing the issues and recording the evidence, on appreciation of the same, the trial Court by dismissing the suit of the appellant, decreed the counter-claim of respondents No. 6 and 7 for eviction on the ground under section 12(1)(a) and (i) of the Act against the appellant holding the relationship of the tenant and landlord had been established between them. On challenging the same by the appellant before the Appellate Court on consideration by setting aside the finding of the trial Court for eviction on the ground under section 12(1)(a) of the Act by dismissing the appeal, the judgment and decree of the trial Court for eviction has been affirmed on which the appellant has come forward with this appeal. 6. Shri R. S. Tiwari, learned appearing counsel of the appellant after referring the pleadings, evidence and the exhibited documents on record argued that on proper appreciation of the evidence, the Courts below ought to have decreed his suit for the prayer made in it by dismissing the counter-claim of respondents No. 6 and 7. In continuation, he said that as per prevailed custom in Pachmarhi and adjoining area on intending to sell the tenanted premises, the tenant of the accommodation is having the right of pre-emption to purchase the same first. But in the present matter contrary to such custom without asking the appellant, the respondents No. 1 to 5 had sold such property to respondents No. 6 and 7. 7. He further argued that even after execution of the sale deed between respondents No. 1 to 5 and respondents No. 6 and 7 the attornment of appellant's tenancy in favour of such purchaser has not been established by any admissible evidence. So, the approach of the Courts below holding the relationship between them as tenant and the landlord is not sustainable. It was also argued that appellant's tenancy was not terminated by the respondents No. 6 and 7 in accordance with the prescribed procedure. So, the approach of the Courts below holding the relationship between them as tenant and the landlord is not sustainable. It was also argued that appellant's tenancy was not terminated by the respondents No. 6 and 7 in accordance with the prescribed procedure. He also argued that mere on acquisition of the residential house of his own by the appellant or his family, the impugned decree could not have been passed against him under section 12(1)(i) of the Act, as the respondents No. 6 and 7 could not prove their case, as per requirement of such provision. With these submissions, he prayed for admission of this appeal on the proposed substantial questions of law mentioned in the appeal memo. 8. Having heard, keeping in view his arguments, I have carefully gone through the record and also perused the impugned judgments. 9. It is apparent on record that the Courts below after taking into consideration the pleadings, evidence and the exhibited documents of the parties concurrently held that relationship of the tenant and the landlord between the appellant and respondents No. 6 and 7 after purchasing the property by them has been established, as such the tenancy of the appellant with the respondents Nos. 1 to 5 has been found to be duly attorned in favour of respondents No. 6 and 7. 10. The aforesaid concurrent findings are based on available evidence as well as the proved documents the notice Ex.D/1 dated 10-6-2002 given by the respondents No. 6 and 7 to the appellant informing him regarding acquisition of the title vide registered sale deed 31-8-2001 from the respondents Nos. 10. The aforesaid concurrent findings are based on available evidence as well as the proved documents the notice Ex.D/1 dated 10-6-2002 given by the respondents No. 6 and 7 to the appellant informing him regarding acquisition of the title vide registered sale deed 31-8-2001 from the respondents Nos. 1 to 5 with a further intimation to pay the rent of the disputed accommodation to them which was sent to the appellant through registered post vide receipt No. 2390 Ex.D/2 and the same was served on him by acknowledgment due receipt Ex.D/3 and the subsequent notice Ex.D/4 dated 9-9-2002 given by the respondents No. 6 and 7 to the appellant terminating his tenancy in the disputed accommodation on the expiry of tenancy month on 30-9-2002 with a direction to handover the vacant possession of the disputed accommodation along with outstanding sum of the rent, which was send by postal receipt Ex.D/6 and was duly served on the appellant as per certificate of Sub-Post Master Ex.D/5, and the circumstance that in spite having the opportunity to disclose the defence at earliest opportunity by sending the reply none of the aforesaid notice has been replied by the appellant by stating his defence which was taken by him at latter stage in his suit. 11. It is settled proposition of law that whenever a notice is given by a party to the other party and in spite of service of the same if it is not replied by the other party then, such circumstance is sufficient to draw inference against such other party that he did not have any proper defence to challenge or rebut the case of the party who issued such notice. So in such premises, it could not be said that the intimation of purchasing the house was not given to the appellant by respondents No. 6 and 7 and the tenancy of the appellant was not attorned in favour of respondents Nos. 6 and 7. My aforesaid view is fully fortified by the decision of Patna High Court in the matter of Kameshwar Lal vs. The King, reported in AIR (35) 1948 Patna 406 holding that non-reply of notice is sufficient circumstance to draw an inference against the notice. So in such premises, the arguments advanced by the appellant's counsel saying that the tenancy was not duly attorned between him and the respondents Nos. So in such premises, the arguments advanced by the appellant's counsel saying that the tenancy was not duly attorned between him and the respondents Nos. 6 and 7 has not appealed me. In such premises, the concurrent findings of the Courts below holding the relationship as landlord and tenant between the parties does not require any consideration under section 100 of the Civil Procedure Code at this stage and in such premises such argument is not giving rise to any substantial question of law in this appeal. 12. Even otherwise the concurrent findings of the Courts below holding the relationship of the parties as landlord and the tenant being based on appreciation of the evidence and documents are finding of fact and the same could not be interfered under section 100 of the Civil Procedure Code as laid down by the Apex Court in the matter of Kalyan Singh vs. Ramswaroop and another, reported in 7996 JLJ 247. Such view is further followed by this Court in the matter of Machala Bai vs. Nanak Ram, reported in 2006(11) MPLJ page 484. So in such premises also, this appeal does not involve any substantial question of law. 13. So far as argument relating to right of pre-emption to purchase the property by the tenant like appellant is concerned, I am not apprised by any legal position by the counsel for the appellant in support of such contention. Even otherwise, in the existing law, the tenant did not have any such right of pre­emption in the tenanted premises to purchase the same. Once a person who entered in the premises as tenant he always remains tenant and does not acquire any right of pre-emption against the landlord to purchase the same unless some express contract takes between the parties by their act. In such premises, the concurrent findings of the Courts below holding that in the area of Pachmarhi no such right of preemption is available to the appellant is not giving rise to any substantial question of law in the present matter. 14. So far the decree passed on the ground under section 12(1)(i) of the Act is concerned, after taking into consideration the entire evidence available on the record, it was concurrently held the appellant had acquired accommodation of his own for the residence of his family in which they are residing. 14. So far the decree passed on the ground under section 12(1)(i) of the Act is concerned, after taking into consideration the entire evidence available on the record, it was concurrently held the appellant had acquired accommodation of his own for the residence of his family in which they are residing. Even at this stage, after going through the evidence, I have not found any perversity in appreciation of such evidence of the Courts below for passing the decree on such ground. It is settled proposition of law that the concurrent finding of the Courts below based on appreciation of the evidence howsoever the same are erroneous, could not be interfered under section 100 of the Civil Procedure Code by framing any substantial question of law as the same does not give rise to any question of law rather than the substantial question of law, as laid down by the Apex Court in the matter of Kondiba Dagdu Kadam vs. Savitribai Sopan Gujar and others, reported in AIR 1999 SC page 2213. So, on this question also this appeal did not have any material or the substance to frame any substantial question of law for admission of this appeal. 15. In view of the aforesaid, I have not found any substance in the case giving rise to any substantial question of law requiring any consideration under section 100 of Civil Procedure Code at this stage of second appeal resultantly, the appeal being devoid of any question of law, is hereby dismissed at the stage of motion hearing. 16. However, considering the over-all circumstances of the case and taking into consideration that the appellant was remained in possession as tenant since long, I deem fit to extend him some period to vacate the disputed premises on certain conditions. 17. 16. However, considering the over-all circumstances of the case and taking into consideration that the appellant was remained in possession as tenant since long, I deem fit to extend him some period to vacate the disputed premises on certain conditions. 17. Hence, it is directed that on payment of regular monthly mesne profit @ the monthly rent within 15 days, from the end of every Georgian calendar month and on furnishing the appropriate surety to the satisfaction of the trial Court within 30 days from today with an undertaking that the appellant shall hand over the vacant possession of the disputed premises peacefully to the respondents No. 6 and 7 on or before 31-12-2010, the time upto 31-12-2010 is extended to the appellant for vacating the disputed premises, failing in compliance of any of the aforesaid condition, the respondents shall be at liberty to execute the decree forthwith with all aspects. There shall be no order as to the costs. 18. Appeal is dismissed with aforesaid observations and directions. Appeal dismissed.