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Madhya Pradesh High Court · body

2010 DIGILAW 871 (MP)

Satya Prakash v. Bhagwan Das

2010-08-27

A.M.NAIK

body2010
JUDGMENT 1. Plaintiffs-appellants instituted a suit for eviction and recovery of arrears of rent mainly with the allegations that the defendant in the suit shop is a tenant @ Rs.200/- p.m. under the oral agreement of tenancy created in the month of March, 1977. Plaintiffs Kamal Prakash and Narayandas were unemployed and they required the suit shop to start a business of readymade garments. Suit was instituted on 11.4.189. It was alleged in the plaint that the defendant was in arrears of rent w.e.f. 1.3.1989. By way of amendment, it was stated that two of the plaintiffs, namely, Satya Prakash and Kamal Prakash had earlier instituted a suit against Manoharlal in the year 1981 for the bona fide need of Kamal Prakash. Due to family circumstances, the shop was occupied by Gopaldas, the plaintiff No.3 who started his business in the shop vacated by Manoharlal in the year 1982. Adjoining shop is occupied by Gopaldas, plaintiff No.3. 2. Defendant-respondent submitted his written statement denying thereby claim of the plaintiffs. It was contended that the house comprising the suit shop was purchased by Satya Prakash and Kamal Prakash alone vide registered sale-deed dated 17.11.1951 and they alone are the owners of it. Gopaldas and Narayandas have no right, title or interest in the suit shop. Earlier, the defendant was also in occupation of the shop adjoining the suit shop. Half of the portion was vacated by the defendant which is in occupation of plaintiffs No.2 and 4, who were running their business in it. Remaining suit shop is in occupation of the defendant. Plaintiff No. 1 Satya Prakash is running his business at Jaipur. Since, Narayandas is not owner of the suit shop, suit on the basis of his alleged need is not maintainable. Kamal Prakash whose need is also projected got vacated half of the portion of the shop of the defendant and is running his business in such a portion. Shop vacated by Manoharlal is not occupied by Gopaldas but is in occupation of Kamal Prakash and Narayandas who are running their business of Samose, Kachodi and tea, etc. in it. Thus, the suit is liable to dismissal. It is further stated that the defendant was inducted in the suit shop by Kamal Prakash and Satya Prakash, who alone are the owners of the suit shop. in it. Thus, the suit is liable to dismissal. It is further stated that the defendant was inducted in the suit shop by Kamal Prakash and Satya Prakash, who alone are the owners of the suit shop. Defendant is not a tenant of plaintiffs No.3 and 4 and no eviction can be sought on the alleged need of Narayandas, plaintiff No.4. 3. Learned trial Judge after recording the evidence dismissed the suit of the plaintiffs vide judgment and decree dated 31.1.2000 with a finding that the plaintiffs No.1 and 2 alone are the owners of the suit shop. They obtained the vacant possession of one shop from another tenant Manoharlal through Civil Suit No.13-A/81 on the ground of their own need. The alleged need of plaintiffs No.2 and 4 was not found proved. It was further found that the plaintiffs No.3 and 4 were wrongly joined despite having no right, title or interest in the suit shop. 4. Aggrieved by the same, plaintiffs submitted Civil Appeal No.7-A/2000. I.A. No. 1 (under Order 41 rule 27 CPC) and I.A. No. II (under Order 6 rule 17 CPC) were submitted by the plaintiffs-appellants before the lower appellate Court. Learned lower appellate Judge dismissed the appeal as well as both the I.As, vide impugned judgment and decree dated 4.12.2000, hence the present appeal which has been heard on the following substantial questions of law: (1) Whether the Courts below have committed an error in holding that plaintiffs are not the owners of the disputed property and ignoring the law laid down by the apex Court in 1994 JLJ 486 ? (2) Whether the Courts below have committed an error in holding that the requirement of the appellant is not genuine and bona fide? (3) Whether learned lower appellate Judge has committed illegality in dismissing the applications submitted by the plaintiffs-appellants under Order 6 rule 17 and under Order 41 rule 27 CPC. 5. Appellants have submitted two applications both under Order 41 rule 27 CPC, bearing I.A. No.241/07 and I.A. No. 14457/09. I.A. No.241/07 is accompanied by a judgment and decree dated 10.10.19959 passed by the Court of First Civil Judge Class I, Morena. I.A. No. 14457/09 is also in respect of a prayer to accept such judgment and decree as additional evidence. 6. I.A. No.241/07 is accompanied by a judgment and decree dated 10.10.19959 passed by the Court of First Civil Judge Class I, Morena. I.A. No. 14457/09 is also in respect of a prayer to accept such judgment and decree as additional evidence. 6. It has been argued on behalf of the appellants that the Courts below have committed illegality in holding that the suit shop is owned by plaintiffs No.1 and 2 alone on the strength of registered sale-deed dated 17.11.1951. According to learned Senior Advocate, Ex.D-35 is a certified copy of the sale-deed which having not been duly proved in accordance with law, could not have been looked into. Reliance for this purpose has been placed on the decision of the apex Court in case of Anar Devi v. Nathuram [1994 JLJ (SC) 486], and of this Court in the case of Rekha and others v. Smt. Ratnashree [ 2006(2) JLJ 275 ]. 7. In the case of Anar Devi (supra), it has been held that a tenant cannot deny the title of his landlord at the beginning of the tenancy. In the case in hand, the defence of the defendant is that the plaintiffs No.1 and 2 alone are the owners of the suit property and they have inducted him as a tenant. He has, nowhere, denied the title of plaintiffs No.1 and 2, who according to him had inducted him as a tenant in the suit shop. Plaintiff No.2 has admitted categorically in para 16 that he and plaintiff No.1 got the house comprising the suit shop by virtue of sale-deed marked as Ex.D35. Admission of this document was opposed on the ground that it was not original sale-deed. Original sale-deed dated 17.11.1951 is in favour of plaintiffs No.1 and 2 which must be in their control custody and power. Division Bench of this Court in the case of Rakha and others v. Smt. Ratnashreee [ 2006(2) JLJ 275 ], has held in para 18 that a certified copy can be offered as secondary evidence where the existence, condition or contents of the original have been admitted in writing by the person against whom it is proved and such admission is proved. Plaintiff No.2 has admitted the existence of registered sale-deed (Ex.D-35) in his statement on oath and when question about its existence was put to him, neither he nor his counsel did raise any objection on the ground of absence of original document. On the contrary, admission of the certified copy of sale-deed contained in Ex.D-35 was accepted and it was admitted that the plaintiffs No.1 and 2 got the house comprising the suit shop in their favour by virtue of the sale-deed marked as Ex.D-35. Moreover, there are various admissions about the ownership of the plaintiffs No.1 and 2 alone. Counterfoils of original rent receipts marked as Ex.D-13 to Ex.D-34 are all in the names of Satya Prakash and Kamal Prakash alone. Names of other plaintiffs, i.e., Gopaldas and Narayandas are not mentioned in the receipts as owners and/or co-owners of the suit property. In addition to this, it is on record that plaintiff Satya Prakash and Kamal Prakash instituted Civil Suit No.13-A/81 describing the suit property as owned and occupied by them alone. Copy of the plaint is on record as Ex.D-11, which contains an admission to the aforesaid effect. It cannot be lost sight of that it is an eviction suit based on ground under section 12(1)(f) of the M.P. Accommodation Control Act, 1961 in respect of the alleged need of Kamal Prakash and Narayandas. Defendant-respondent categorically stated in his written statement that Kamal Prakash has already obtained possession of a vacant shop vide Civil Suit No.13-A/81 and Narayandas having no right, title or interest, eviction cannot be sought from the suit shop on the basis of his alleged need. In such a situation, more so when plaintiff Kamal Prakash himself has admitted Ex.D-35, registered sale-deed dated 17.11.1951 whereby he and Satya Prakash received the suit property, the Courts below are not found to have committed any error in considering the sale-deed in view of the decision of the apex Court in the case of Gurnam Singh and others v. Surjit Singh and others [ AIR 1974 SC 2367 ], wherein, it is observed that the sale-deed is a public document and could have been easily looked into, if they would have asked for it to be admitted at the appellate stage. Case in hand is an eviction suit, wherein, plaintiff Kamal Prakash and Narayandas with other plaintiffs claimed to be owners of the suit shop and sought eviction on the ground of bona fide need on ground under section 12(1)(f) of the Act in respect of Kamal Prakash and Narayandas, alone. Thus, Narayandas was also obliged to establish his ownership over the suit shop. The property comprising the suit shop is mentioned as having been purchased by Kamal Prakash and Satya Prakash alone vide registered sale-deed marked as Ex.D-35, which has been admitted by Kamal Prakash in his own statement. This being so, Courts below are not found to have committed any error in taking Ex.D-35 into consideration looking to the nature of eviction suit and the admission of plaintiff Kamal Prakash himself about Ex.D-35 in para 16 of his statement. 8. It is further contended that the document proposed under Order 41 rule 27 CPC is a judgment and decree dated 10.10.1959 passed by the Court of First Civil Judge Class I, Morena in C.S. No.37/56, which goes to show that the house comprising suit shop does not belong to Kamal Prakash and Satya Prakash alone. On perusal it is found that the said house was got attached by one Bhagwandevi in the recovery proceedings against Hariprasad, father of Satya Prakash and Kamal Prakash. Attachment was challenged by plaintiffs No.1 and 2 on the ground that the house belonged to them. This was not accepted. This judgment and decree in no manner can bind the defendant-respondent more so when the plaintiffs No.2 himself has admitted in his statement that he and is brother got the suit house by virtue of registered sale-deed contained in Ex.D-35. Plaintiffs No.1 and 2 have not placed any document to show that the suit house was further treated as a property inherited from their father. Instead, in the litigation initiated by way of suit for eviction, (Ex.D-11) as well as from perusal of rent receipts issued, it seems that the suit property used to be described always as belonging to plaintiffs No.1 and 2 alone. Thus, there being ample admissions in respect of ownership in favour of plaintiffs No.1 and 2 alone, the document proposed under Order 41 rule 27 CPC is not found necessary for the adjudication of the eviction suit. Consequently, both I.As are accordingly dismissed. 9. Thus, there being ample admissions in respect of ownership in favour of plaintiffs No.1 and 2 alone, the document proposed under Order 41 rule 27 CPC is not found necessary for the adjudication of the eviction suit. Consequently, both I.As are accordingly dismissed. 9. At this stage, it is observed that the Courts below after properly appreciating the entire material on record have arrived at a finding in concurrent manner that plaintiff Satya Prakash has settled down at Jaipur and Kamal Prakash has already obtained vacant possession of shop vide Civil Suit No. 13-A/81. It has further been found that Satya Prakash and Kamal Prakash alone are the owners of the suit shop as revealed in Ex.D35. Consequently, eviction cannot be ordered for the alleged need of Narayandas, who has no right, title or interest in the suit shop. These are findings of facts arrived at after correct appreciation of the evidence on record. Hon'ble Supreme Court of India in the case of Mattulal v. Radhe Lal [ AIR 1974 SC 1596 ], has observed: "It is settled law that the High Court in second appeal cannot re-appreciate the evidence and interfere with findings of fact reached by the lower appellate Court. The lower appellate Court is final so far as findings of fact are concerned. The only limited ground on which the High Court can interfere in second appeal is that the decision of the lower appellate Court is contrary to law. It is only an error of law which can be corrected by the High Court in exercise of its jurisdiction in second appeal. If the finding recorded by the lower appellate Court is one of law or of mixed law and fact, the High Court can certainly examine its correctness, but if it is purely one of fact, the jurisdiction of the High Court would be barred and it would be beyond the ken of the High Court unless it can be shown that there was an error of law in arriving at it or that it was based on no evidence at all or was arbitrary, unreasonable or perverse......" Learned counsel for the appellant has been unable to point out consideration of any inadmissible evidence or non-consideration of any material admissible piece of evidence. He has also been unable to demonstrate arbitrariness, unreasonableness or perversity. 10. He has also been unable to demonstrate arbitrariness, unreasonableness or perversity. 10. It may further be seen that the need of Kamal Prakash and Narayandas was pleaded and eviction was sought on its basis. Kamal Prakash has already died on 13.3.2004 and his alleged need did vanish. Moreover, Kamal Prakash is already found to have obtained vacant possession from a tenant Manoharlal. Narayandas is not found to have proved any ownership in the suit shop, therefore, his alleged need is not covered by section 12(1)(f) of the M.P. Accommodation Control Act, 1961. As regards another plaintiff, namely, Satya Prakash, he has settled down at Jaipur as admitted by plaintiffs in para 3 of I.A. No.14457/09. Accordingly, substantial questions of law No. (1) and (2) are answered against the appellants on the basis of the discussion contained in the preceding paragraphs. 11. Now, coming to the third substantial question of law. It may be seen that the plaintiffs have sought amendment by incorporating that the house comprising the suit shop is a property of ancestors of the plaintiffs, which was mortgaged by them. However, the sale-deed was got executed in favour of the mortgagee in place of mortgage deed. Father of the plaintiffs got the same to the extent of his share by making payment of Rs.800/-. However, the sale-deed was got executed on 17.11.1951. Thus, it is stated that it was a property belonging to Joint Hindu Family of plaintiffs. 12. I.A. No. I (under Order 41 rule 27 CPC) submitted before the lower appellate Court is not found to have been accompanied with any document. Moreover, the plaintiffs had made a prayer to allow them to place the document relating to title on record. Firstly, I.A. I was not accompanied by any document and no such application without proposed document may be made. Secondly, an eviction suit cannot be permitted to be converted into a title suit by entering into the question of true intention behind purchase, mortgage, redemption etc. Since the relationship of landlord and tenant has been found proved by the Courts below on the basis of various documents including rent receipts (Ex.D-13 to D-34), an extensive enquiry in respect of title in favour of a person other than a person named in the registered sale-deed cannot be permitted. Since the relationship of landlord and tenant has been found proved by the Courts below on the basis of various documents including rent receipts (Ex.D-13 to D-34), an extensive enquiry in respect of title in favour of a person other than a person named in the registered sale-deed cannot be permitted. This being so, learned lower appellate Judge is not found to have committed any error in dismissing both I.A. I and I.A. II. Accordingly, substantial question of law No. (3) is also decided against the appellants. 13. In the result, the appeal being devoid of force is hereby dismissed, however, with no order as to costs.