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Madhya Pradesh High Court · body

2010 DIGILAW 898 (MP)

Santosh Singh v. Arun Kumar

2010-09-06

V.C.MAHESHWARI

body2010
ORDER 1. This appeal is directed by the appellant/defendant being aggrieved by the judgment and decree dated 22.11.2004 passed by Additional District Judge, Khurai, District Sagar in Civil Regular, Appeal No. 131-A/03 upholding the judgment and decree dated 16.1.2002 passed by IInd Civil Judge Class-I, Khurai in Civil Original Suit No. 291-A/2000 decreeing the suit of the respondents for eviction against him on the ground of bona fide genuine requirement for nonresidential purpose enumerated under section 12 (1) (f) of the M.P. Accommodation Control Act, 1961 (in short 'the Act'). 2. The facts giving rise to this appeal in short are that the respondent herein filed the abovementioned suit for eviction against the appellant contending that the appellant being his monthly tenant @ Rs. 200/- per month is in occupation of the disputed shop situated at Station Road, Khurai for non-residential purpose. As per further averments, the respondent is in bona fide genuine requirement of such shop for opening his business of agricultural equipments and spare parts, for which he did not possess any other convenient suitable accommodation of his own in the township to Khurai. Regarding this requirement, he intimated the appellant through notice dated 1.5.1988. In spite service of it, the same was not complied with and instead to vacate the accommodation for the alleged need, the notice was replied on false pretext. The explanations regarding other accommodation which are in occupation of other tenants are also given in the pleadings. Besides this, the ground of nuisance stating that without permission and consent of the respondent, the appellant has materially altered the disputed shop by removing the wooden doors and placing the shutters. The flooring was also carried out without asking from the respondent and thereby, the appellant caused the substantial injuries to the right and title of the respondent with respect of such accommodation. With these pleadings, the aforesaid suit for eviction was filed on the ground enumerated under sections 12 (1) (c) and 12 (1) (f) of the Act. The prayer for issuing perpetual injunction is also made against the appellant. 3. In the written statement of the appellant by admitting the alleged tenancy, it is stated that initially the appellant was inducted as tenant on 1.5.1978 and thereafter, by enhancing the monthly rent a new documentation was carried out by the respondent from the appellant. The prayer for issuing perpetual injunction is also made against the appellant. 3. In the written statement of the appellant by admitting the alleged tenancy, it is stated that initially the appellant was inducted as tenant on 1.5.1978 and thereafter, by enhancing the monthly rent a new documentation was carried out by the respondent from the appellant. The reply of the notice was given by mentioning the correct facts. fn addition, it is stated that before filing the suit, the respondent demanded Rs. 50,000/- as premium (Pagadi) of such accommodation and also asked him to enhance the rent from Rs. 200/- per month to Rs. 500/per month for which the appellant was not prepared, on which with mala fide intention by stating the requirement of such shop, the suit has been filed on the false pretext while, respondent being agriculturist is having 60-70 acres of agricultural land in his family and he does not have any time for the business as they are always busy in the agricultural activities. So far changing shutters at the place of wooden doors is concerned, it is stated that the same were replaced with the consent of the respondent. The entire rent of the accommodation has been deposited in the Court. With these pleadings the prayer for dismissal of the suit is made. 4. In view of pleadings of the parties, after framing the issues the evidence was recorded, on appreciation of the same, the alleged bone fide genuine requirement of the plaintiff to start his business has been found to be proved and in such premises, the suit of the respondent was decreed by the trial Court under section 12 (1) (f) of the Act while the prayer for eviction on the ground under section 12 (1) (c) was refused. On challenging such decree by the appellant before the appellate Court, on consideration, by affirming the same his appeal has been dismissed on which the appellant has come forward to this Court with this appeal. 5. On challenging such decree by the appellant before the appellate Court, on consideration, by affirming the same his appeal has been dismissed on which the appellant has come forward to this Court with this appeal. 5. Shri Sourabh Ti wan, learned counsel for the appellant after taking me through pleadings of the parties, evidence available on the record and the exhibited documents argued that the respondent has utterly failed to prove his bone fide genuine requirement of the disputed shop for opening the alleged business, in spite of that, the Courts below concurrently decreed the suit of the respondent under wrong premises on the ground enumerated under section 12 (1) (f) of the Act, hence the decree is not sustainable under the law. He also argued that in the lack of evidence regarding avail ability of sufficient funds with the respondent for opening the alleged business, the impugned decree could not be sustained. The case was also argued on the basis of available alternative accommodation of his own with the appellant for his alleged need. In addition, it was argued that the respondent being lea-see of the local authority for the land on which the shop is situated in the lack of ownership was not entitled to get the decree under section 12 (1) (f) of the Act, and prayed to admit this appeal on the proposed substantial questions of law mentioned in para 7 of the appeal memo. 6. Having heard the counsel, after perusing the records along with the impugned judgment, I am of the considered view that the Courts below have not committed any error, in passing the impugned decree of eviction on the ground of alleged bone fide genuine requirement of the respondent for the non-residential purpose under section 12 (1) (f) of the Act. 7. After going through the evidence led by the parties, I have found the findings of the Courts below in the impugned judgments in consonance with such evidence. The question raised by the appellants regarding availability of alternate accommodation with the respondent was also taken into consideration by both Courts below and the same was answered against the appellant holding that no suitable alternate accommodation for the alleged need is available with the respondent of his own in Khurai. 8. The question raised by the appellants regarding availability of alternate accommodation with the respondent was also taken into consideration by both Courts below and the same was answered against the appellant holding that no suitable alternate accommodation for the alleged need is available with the respondent of his own in Khurai. 8. The argument of the appellant counsel that in the lack of proof of the ownership of the respondent to the disputed premises the decree under section 12 (1) (f) of the Act is not sustainable is concerned, in view of averments of the written statement admitting the alleged tenancy of the accommodation with the respondent such argument has neither appealed me nor giving rise to any substantial question of law in the matter. - 9. So far the argument that the shop being situated on the land of local authority taken by the respondent on lease in the lack of proof of ownership of respondent, the decree under section 12 (1) (f) of the Act is not sustainable is concerned, in view of law laid down by the apex Court in the matter of Smt. Shanti Sharma and others v. Smt. Ved Prabha and others, reported in AIR 1987 SC 2028 such argument has not appealed me and the same is not giving rise to any substantial question of law. In the aforesaid cited case it was held as under: - "14..............In this context, the phrase 'owner' thereof has to be understood, and it is clear that what is contemplated is that where the person builds up his property and lets out to the tenant and subsequently needs it for his own use, he should be entitled to an order or decree for eviction, the only thing necessary for him to prove is bona fide requirement and that he is the owner thereof. In this context, what appears to be the meaning of the term 'owner' is vis-a-vis the tenant i.e. the owner should be something more than the tenant. Admittedly in these cases where the plot of land is taken on lease the structure is built by the landlord and admittedly he is owner of the structure. In this context, what appears to be the meaning of the term 'owner' is vis-a-vis the tenant i.e. the owner should be something more than the tenant. Admittedly in these cases where the plot of land is taken on lease the structure is built by the landlord and admittedly he is owner of the structure. So far as the land is concerned he holds a long lease and in this view of the matter as against the tenant it could not be doubted that he will fall within the ambit of the meaning of the term 'owner' as is contemplated under this section." 10. Besides the above, the concurrent findings of the Courts below holding the relationship of the landlord and tenant between the parties, in view of law laid down by the apex Court in the matter of Kalyan Singh v. Ramswaroop and another, reported in 1996 1L1 247, being finding of fact could not be interfered under section 100 of the Civil Procedure Code at this stage. 11. So far the argument of the appellant counsel that the impugned decree on the ground of bona fide genuine requirement of the premises for no-residential purpose being passed under wrong appreciation of evidence, is not sustainable under section 12 (1) (f) of the Act is concerned, I have not found any substance in such argument because of the concurrent findings of the Courts below on such question based on and in consonance with the evidence as stated above being findings of fact could not be interfered under section 100 of the Civil Procedure Code at the stage of second appeal as laid down by the apex Court in the matter of Dr. Ranbir Singh v. Asharfi La1, reported in (1995) 6 SCC page 580 in which it is held as under :- "13. .................The trial Court and the first appellate Court on a close analysis of the evidence also recorded a definite findings that the plaintiff's requirement of the suit premises was genuine and bona fide but the High Court set aside the same on reasonable grounds." "14. Sub-section (1) of section 100 of the Code of Civil Procedure contemplates that an appeal shall lie to the High Court from every decree passed in appeal by any Courts subordinate to the High Court, If the High Court is satisfied that the case involves a substantial question of law. Sub-section (1) of section 100 of the Code of Civil Procedure contemplates that an appeal shall lie to the High Court from every decree passed in appeal by any Courts subordinate to the High Court, If the High Court is satisfied that the case involves a substantial question of law. Subsection (4) of section 100 further provides that when the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. But it may be pointed out that the High Court formulated no such question of law on basis of which it proposed to interfere with the findings of facts. In has been the consistent view of this Court that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, based upon an appreciation of the relevant evidence. There is a plethora of case-law in support of this view. To quote a few, references may be made to the decision in V. Ramachandra Ayyar v. Ramalingam Chettiar wherein this Court took the view that even if the appreciation of evidence made by the lower appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure and the High Court cannot interfere with the conclusion of fact recorded by the lower appellate Court. This view has been reiterated by this Court in Bhagwan Dass v. Jifey Kaur. This being the position, the High Court was not justified in reappreciating the evidence and substituting its own conclusion for the well reasoned findings recorded by the Courts of facts." 12. Apart the above, in any case the concurrent findings of the Courts below based on appreciation of evidence being findings of fact howsoever the same are erroneous in view of law laid down by the apex Court in the matter of Kobdiba Dagadu Kadam v. Savitribai Sopan Gujarand others, reported in AIR 1999 SC 2213 could not be interfered under section 100 of the Civil Procedure Code. 13. So, in view of the aforesaid discussion and legal position I have not found any substance or circumstances in this appeal giving rise to any substantial question of law requiring consideration at this stage under section 100 of the Civil Procedure Code. 13. So, in view of the aforesaid discussion and legal position I have not found any substance or circumstances in this appeal giving rise to any substantial question of law requiring consideration at this stage under section 100 of the Civil Procedure Code. Resultantly, the appeal being devoid of any such question deserves to be and is hereby dismissed at the stage of motion hearing. 14. However, considering the circumstances that the appellant being in long possession of the disputed shop, it would not be possible for him to vacate the , premises, immediately, therefore, I deem fit to extend him some period for vacating the premises on some conditions. 15. Hence, it is directed that on depositing the entire decretal sum within 30 days from today and also on payment of regular monthly mesne profit at the rate of 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 respondent on or before 30-4-2011, the time upto 30-4-2011 is extended to the appellant for vacating the disputed premises, failing in compliance of any of the aforesaid condition, the respondent shall be at liberty to execute the decree forthwith with all aspects. There shall be no order as to costs. . 16. Appeal is dismissed at the stage of motion hearing but with aforesaid observation and directions.