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Madhya Pradesh High Court · body

2011 DIGILAW 884 (MP)

Govind v. Paribai

2011-08-08

A.K.SHRIVASTAVA

body2011
JUDGMENT 1. The unsuccessful plaintiffs have filed this second appeal assailing the judgment and decree passed by the learned First Appellate Court dismissing their suit for eviction on the grounds envisaged under section 12(1) of M.P. Accommodation Control Act, 1961 (in short the Act) by setting aside the judgment and decree dated 16.1.1991 passed by the learned trial Court decreeing the suit of eviction of plaintiffs. 2. More than 32 years ago on 9.7.1979 the plaintiffs-appellants filed suit for eviction arraying Smt. Paribai, Chhitulal and Mishrilal as main defendants while defendants No.4 to 9, who were members of the plaintiff No.2 were also impleaded as defendants. 3. According to the plaint averments, defendant No.1 Smt. Paribai was inducted as tenant on the basis of oral tenancy w.e.f. 1.12.1972 and the suit house was given to her by the then President of Gurwa Samaj, Maheshwar through President Laxmichand. The tenancy commenced from every first day of each month and terminates on the last date of that month. The rate of rent was Rs.8/- per month. Thereafter defendant No.1 also executed a rent note dated 7.2.1973 in favour of Gurwa Samaj admitting her to be a tenant @ of Rs.8/- per month. Later on the suit property was bought by plaintiff No.1 Govind from the said Gurwa Samaj, Maheshwar and at that juncture Bheelu was the President of that Samaj. The registered sale-deed was executed by the Gurwa Samaj on 8.12.1977 through its President Bheelu to plaintiff No.1 Govind for a consideration of Rs.8,500/ After purchasing the suit property the plaintiff No.1 made demand of rent from the defendants No.1 to 3 but they did not pay any rent to him nor to Gurwa Samaj. Eventually, on 8.6.1978 plaintiff No.1 Govind sent registered post notice to defendants 1 to 3 by terminating their tenancy. The notice was replied by defendants 1 and 2 on 27.6.1978 and they denied the relationship of landlord and tenant. Eventually, a suit was filed for eviction. Later on the suit was amended and alternatively, relief of possession was also sought on the basis of title. The court-fees was also paid accordingly. 4. Defendant No.1 Smt. Paribai, though she was served, neither filed any written statement nor she appeared as witness during the trial although admittedly she is the mother of defendants 2 and 3. Later on the suit was amended and alternatively, relief of possession was also sought on the basis of title. The court-fees was also paid accordingly. 4. Defendant No.1 Smt. Paribai, though she was served, neither filed any written statement nor she appeared as witness during the trial although admittedly she is the mother of defendants 2 and 3. These two defendants filed a written statement and denied the plaint averments but they have put their ignorance that their mother Paribai defendant No.1 ever executed any rent note in favour of plaintiff No.2 Gurwa Samaj. In their written statement they have not only denied relationship of landlord and tenant but also denied the title of the plaintiff No.1 Govind as well as the authenticity of Bheelu being President of Gurwa Samaj to sell the suit property. In the written statement the plea has been set up by them that they are possessing the suit property in their own rights. 5. The other defendants, who were the members of the Samaj, have filed separate written statement. 6. The learned trial Court framed necessary issues and after recording the evidence of the parties decreed the suit in favour of plaintiff No.1 Govind holding him to be the landlord of defendants 1 to 3 and found the ground of eviction proved as envisaged under section 12(1)(a) and (c) of the Act. 7. The defendants filed first appeal before the learned First Appellate Court which has been allowed by the impugned judgment and the learned First Appellate Court dismissed the suit by reversing judgment and decree passed by the learned trial Court. 8. In this manner this second appeal has been filed by the plaintiffs assailing the judgment and decree passed by the First Appellate Court. 9. On 31.7.1998, this Court admitted the second appeal on the following substantial questions of law : (i) Whether in the facts and circumstances of the case, the finding of the lower appellate Court that the relationship of landlord and tenant is not established between Gurwa Samaj is perverse, particularly in face of the rent note Ex.P-1 and the reply to the notice Ex.P-4? (ii) Whether the finding of the lower appellate Court that the sale in favour of the appellant Govind is not legal is perverse? (ii) Whether the finding of the lower appellate Court that the sale in favour of the appellant Govind is not legal is perverse? (iii) Whether in the facts and circumstances of the case the lower appellate Court has erred in holding that the suit was not maintainable in view of Order 1 rule 8 of CPC? 10. The contention of learned senior counsel for the appellant is that if the rent note executed by the defendant No.1 Paribai is tested on the touchstone and anvil of the evidence of the plaintiffs it would reveal that the relationship of landlord and tenant has been proved between her and the Gurwa Samaj. Later on said Gurwa Samaj through its President Bheelu executed registered sale-deed in favour of plaintiff No.1 Govind and if that would be the position, Govind acquired ownership right over the suit property and by operation of law defendants 1 to 3 became tenants of the plaintiff No.1. By inviting my attention to the admission of defendant No.2 Mishrilal in his evidence, it has been put forth by learned senior counsel that in the evidence this defendant is stating his ignorance about execution of the rent note Ex.P-1 by his mother in favour of Gurwa Samaj. Learned senior counsel further submits that it was the bounden duty of defendants 2 and 3 to get their mother examined but they have not done so, therefore, an adverse inference should be drawn against the defendants. Learned senior counsel also submits that during the pendency of the suit no rent was deposited and because defendants are also denying relationship of landlord and tenant, therefore, the decree of eviction passed by the learned trial Court be restored and the impugned judgment and decree be set aside. Learned counsel further submits that since the members of the Gurwa Samaj were later on arrayed as defendants No.1 to 9, learned first appellate Court erred in substantial error of law in holding that the suit is not maintainable in view of Order 1 rule 8 of the CPC. 11. On the other hand Shri Chhajed, learned counsel for the LRs of respondents No.1 and also for respondent No.2 argued in support of the impugned judgment. 12. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. 13. 11. On the other hand Shri Chhajed, learned counsel for the LRs of respondents No.1 and also for respondent No.2 argued in support of the impugned judgment. 12. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. 13. Before answering the substantial question of law which are framed it would be relevant to mention here that during the pendency of this appeal respondent No.1 who was arrayed as defendant No.1 breathed her last and her LRs Chhitulal and Mishrilal are already on record. Apart from these LRs she was also having one daughter Savitribai, who has been brought on record. Later on respondent No.3 Mishrilal had also died and his LRs have been brought on record. Regarding substantial questions of law No.1 and 2 : 14. On bare perusal of the plaint this Court finds that specifically it has been pleaded by the plaintiff that plaintiff No.2 sold the suit property to plaintiff No.1 Govind vide registered sale-deed dated 8.12.1977. It has also been specifically pleaded in para No.3 of the plaint that in the suit property earlier defendant No.1 was inducted as tenant on oral tenancy basis w.e.f. 1.12.1972. Later on she also executed the rent note in favour of plaintiff No.2 on 7.2.1973. In para 8 of the plaint, it has also been specifically pleaded that plaintiff No.3 Bheelu in the capacity of President of the Gurwa Samaj sold the suit premises to plaintiff No.1 Govind. 15. Defendant No.1 Paribai remained ex parte and she did not file any written statement. The factum of taking the suit property on oral tenancy basis on 1.12.1972 by defendant No.1 Paribai and further executing the written note by her on 7.2.1973 in favour of the then President Laxmichand of Gurwa Samaj has not been specifically denied by the defendants No.2 and 3. They have simply put their ignorance in respect to these pleadings by saying that they have no knowledge about the oral tenancy as well as execution of the written note. In these facts and circumstances, according to me, by not denying the specific averments of the plaintiffs specifically in the written statement and by pleading the ignorance having no knowledge about these facts would amount to admission as envisaged under Order VII rules 3 and 5 of the CPC. In these facts and circumstances, according to me, by not denying the specific averments of the plaintiffs specifically in the written statement and by pleading the ignorance having no knowledge about these facts would amount to admission as envisaged under Order VII rules 3 and 5 of the CPC. In this context I may profitably place reliance on the decision of Supreme Court Jahuri Sah v. Dwarika Prasad Jhunjhunwals [ AIR 1967 SC 109 ], which has also been placed reliance by Division Bench of this Court Dhanbai v. State of M.P. [ 1978 JLJ 879 ]. 16. It be noted that despite she was served the defendant No.1 Smt. Paribai, did not file any written statement and she also failed to appear in the trial Court. Admittedly defendants 2 and 3 are the sons of the defendant No.1 Paribai. Not only this, Paribai who is their mother did not appear as witness in the trial Court. One important fact which cannot be marginalized and blinked away is that when Chhitulal (defendant No.2) appeared in the trial Court as DW1 again he has put his inability and ignorance about the factum of execution of written rent note by her mother Paribai in favour of Gurwa Samaj admitting the tenancy @ Rs.8/- per month. There is specific evidence of plaintiff Govind that firstly Paribai was a tenant of Gurwa Samaj and when she purchased the suit property from that Samaj she became his tenant but she did not pay any rent to him and eventually he sent a notice to evict suit premises to her although in the reply to his notice Paribai and Chhitulal denied the relationship of landlord and tenant, but according to me, she was an important witness and was also tenant and, therefore, even she was ex parte in the trial Court, the defendants 2 and 3, who are her sons ought to have examined her and by not examining her, adverse inference is drawn against them that if she would have been examined she would have admitted the tenancy. 17. The plaintiff also examined Bheelu, who was the then President of the Gurwa Samaj, who sold the suit property to the plaintiff No.1 and this witness has also stated that earlier defendant No.1 Paribai was the tenant of Gurwa Samaj, thus, defendant No.1 Paribai was the tenant of Gurwa Samaj has been proved. 17. The plaintiff also examined Bheelu, who was the then President of the Gurwa Samaj, who sold the suit property to the plaintiff No.1 and this witness has also stated that earlier defendant No.1 Paribai was the tenant of Gurwa Samaj, thus, defendant No.1 Paribai was the tenant of Gurwa Samaj has been proved. The execution of the rent note Ex.P-1 has also been proved by the plaintiffs and hence it is hereby held that Paribai (defendant No.1) was the tenant of Gurwa Samaj and later on when the disputed house was sold to plaintiff No.1 Govind she became his tenant. 18. So far as the execution of the sale-deed is concerned, there is specific pleading of the plaintiffs which is referred in para 8 of the plaint wherein it has been specifically pleaded that the Gurwa Samaj authorized Bheelu to execute the sale-deed. The resolution dated 15.11.1977 authorizing Bheelu to sell the suit property is on record as Ex.P-2 which has been proved by the plaintiff Govind (PW1) as well as by Bheelu (PW6). The factum of execution of the sale-deed has not been specifically denied by the defendants No.2 and 3 in their written statement and in para 8 they have replied that Bheelu was never authorized by the Gurwa Samaj to get the suit property sold in favour of plaintiff. It be noted here that these defendants are not denying the execution of the sale-deed. So far as the authorization of Bheelu is concerned, it has been proved by Ex.P-2 which is the resolution of the Samaj authorizing him to sell the suit house and, therefore, I am of the view that by a valid resolution, Gurwa Samaj sold the suit property to plaintiff No.1 Govind. 19. The ownership of Gurwa Samaj has not been specifically denied by defendant Chhitulal in his evidence, rather he has stated his ignorance that he does not know who is the owner of this house and before occupying the said house when he inquired and did not get any information that who is the owner he entered in the house. In his examination-in-chief, he has stated that Bheelu came to him twice or thrice and asked him to pay the rent but he did not pay to him the rent. In his examination-in-chief, he has stated that Bheelu came to him twice or thrice and asked him to pay the rent but he did not pay to him the rent. He is not saying that Bheelu was not authorized to receive the rent but is saying that when the Panchayat will assemble, at that time he will pay the rent. Although this defendant has admitted in his examination-in-chief that Bheelu told him that he is President of the said Samaj but he was not having knowledge of it. In these state of affairs I am of the view that learned first appellate Court has ignored the material piece of evidence Ex.P-1 as well as the evidence of plantiff Govind (PW1) and Bheelu (PW6) as well as by misinterpreting and ignoring the material evidence of defendant No.2 Chhitulal (DW1) the suit of plaintiff has been dismissed. 20. It is born out from the record that there was a decree of eviction against Paribai defendant No.1 of the house in which she was residing earlier before entering into the suit premises as tenant and in that regard the decree of eviction Ex.P-17 is on record which is dated 5.10.1968. The execution application Ex.P-8 is also on record. This decree of eviction was passed in favour of one Radhakishan and against defendant No.1 Paribai. The warrant of possession is Ex.P-20A, hence, it is born out that after 3 years from the date of eviction from the earlier house in which defendants 1 to 3 were residing these defendants entered in the suit premises as tenant, firstly on oral tenancy basis dated 1.12.1972 which was later on reduced to writing by executing rent note dated 7.2.1973 and, therefore, the plea of defendant becomes false that they are occupying and residing in the suit premises for 17-18 years. 21. The substantial questions of law No.1 and 2 are answered in favour of appellants and against the respondents and it is hereby held that defendants No.1 to 3 were tenant by virtue of Ex.P-1 of Gurwa Samaj and later on they became tenant of plaintiff No.1 Govind as he purchased the suit property from that Samaj and the finding of learned lower appellate Court that the sale in favour of appellant Govind is not legal is perverse. 22. 22. Admittedly the defendants did not deposit any rent during the trial of the suit and they have also denied the ownership of the plaintiff No.1 and, therefore, rightly suit was decreed by learned trial Court under section 12(1)(a) and (c) of the Act in favour of plaintiff No.1 Govind. 23. True, an alternative relief has also been sought by the defendant that under the general law, the decree of possession be passed and they have also paid ad valorem court-fee but since the grounds under section 12(1)(a) and (c) of the Act are proved, the decree of eviction has been rightly passed by learned trial Court. Regarding substantial question of law No.3 : 24. Learned counsel for the respondents could not point out that how and in what manner the suit is not maintainable, I am of the view that suit was maintainable. Learned counsel for the respondents submit that issue No.12 was framed in this regard and it was held that suit of plaintiffs 2 and 3 is not maintainable and against this finding of learned trial Court deciding this issue against plaintiffs 2 and 3 they did not file any cross-objections in this regard before learned first appellate Court but I do not find any substance in his submission because the substantial questions of law No.1 and 2 have been decided in favour of plaintiffs and if plaintiff No.1 Govind is entitled for a decree of eviction even if this substantial question of law is decided against other plaintiffs, it would not affect or jeopardize any right of plaintiff No.1 Govind. 25. Resultantly this appeal succeeds and is hereby allowed. Impugned judgment is hereby set aside and the decree of eviction on the ground under section 12(1) and (c) of the Act passed in favour of plaintiff No.1 Govind is hereby restored. The appellant No.1 Govind shall be entitled for the costs of this appeal. Counsel fee Rs.5,000/- if pre certified. 26. At the last Shri Chhajed, learned counsel for the respondents submitted that since defendants are residing in the suit premises w.e.f. 1972 some breathing time may be granted to them. This prayer is vigorously opposed by learned senior counsel. The appellant No.1 Govind shall be entitled for the costs of this appeal. Counsel fee Rs.5,000/- if pre certified. 26. At the last Shri Chhajed, learned counsel for the respondents submitted that since defendants are residing in the suit premises w.e.f. 1972 some breathing time may be granted to them. This prayer is vigorously opposed by learned senior counsel. However, looking to the facts and circumstances of the case, the prayer of Shri Chhajed is accepted and respondents are hereby directed to vacate the suit premises on the following terms and conditions : (i) they shall vacate the suit premises on or before 31.8.2012; (ii) they shall not create anythird party interest in the suit property; (iii) they shall deposit the entire rent w.e.f. 9.7.1979 @ Rs.8/- per month on or before 31.10.2011; (iv) they shall further continue to deposit the monthly rent in terms of section 13 of the Act; (v) they shall deposit the costs of two Courts below as well as this Court on or before 31.10.2011; (vi) plaintiff No.1 Govind shall be entitled to withdraw the entire rent and the costs which shall be deposited by the respondents or by any of them; and (vii) a usual undertaking shall be given satisfying the aforesaid conditions in the trial Court/executing Court by respondents on or before 31.10.2011. It is, however, made clear that if any of the conditions is violated by the respondents, appellant Govind shall be entitled to file execution of the decree earlier to 31.8.2012. This appeal is accordingly allowed with costs.