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2013 DIGILAW 1508 (MP)

Sunil Kumar v. Dilip

2013-12-04

K.K.TRIVEDI

body2013
JUDGMENT 1. This appeal under section 100 of the Code of Civil Procedure is filed by the appellant-plaintiff against the judgment and decree dated 4.5.2009 passed in Civil Appeal No.3-A/2008 by the Ist Additional District Judge, Shahdol, whereby the judgment and decree dated 23.7.1999 passed in Civil Suit No.17-A/1987 by the Civil Judge Class II, Budhar, has been reversed and the suit of the appellant-plaintiff has been dismissed. This appeal is admitted on the following substantial question of law : “(i) Whether the first appellate Court has committed error in reversing the judgment and decree passed by the trial Court decreeing the suit of the appellants against the respondents on the grounds enumerated under section 12(1)(c) of the M.P. Accommodation Control Act, 1961? (ii) Whether the appellate Court has appreciated the evidence led by the parties contrary to the settled proposition of law?” 2. The appellant-plaintiff landlord filed a suit against the respondent-original defendant seeking a decree of eviction, on the ground of section 12(1)(c) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as the Act for brevity). It was contended that admittedly the respondent-defendant was the tenant of the original appellant-plantiff. The respondent-defendant has though taken the house for the purpose of residence, but after putting a lock on the same, he has shifted to Pendra, District Bilaspur (C.G.) and was not using it right from the year 1972. When a notice demanding vacation of the house after termination of the tenancy was issued, a reply was sent stating that the appellant-plaintiff was not the landlord, in fact, an agreement was got executed between a coparcener of the joint Hindu family by the respondent-defendant on 26.8.1981 for the purpose of sale of the said house, therefore, original plaintiffs were not entitled to grant of a decree of eviction. 3. The suit was contested by the respondent-defendant on the pleas that there was a family dispute in between the original plaintiff and other coparceners of the joint Hindu family and since the demise premises fell in share of one of the coparcener, in fact, the respondent-tenant got an agreement executed for the sale of the demise premises to him. This fact was well within the knowledge of the original plaintiff and he was required to file a claim for partition of the joint Hindu family property which was not done. This fact was well within the knowledge of the original plaintiff and he was required to file a claim for partition of the joint Hindu family property which was not done. Ultimately, there was a family dispute which had gone upto the apex Court and, therefore, such a claim that the original plaintiff was the landlord of the respondent-tenant was not correct. It was, thus, contended that the suit was liable to be dismissed. 4. The civil Court after framing of the issues recorded the evidence of the parties, reached to the conclusion that in fact, by disowning the landlordship of the original plaintiff, a ground for eviction of the tenant was made out and, therefore, the suit was decreed in favour of the original plaintiff. Feeling aggrieved by the judgment and decree of the civil Court, the respondent-defendant preferred an appeal before the first appellate Court, which after consideration of the evidence available on record, reached to the conclusion that the learned civil Court has erroneously granted the decree in favour of the appellant-plaintiff and allowed the appeal. Hence, this appeal is filed, which is admitted only on the aforesaid substantial question of law. 5. It is, vehemently, contended by learned counsel for the appellant-plaintiff that evidence as available on record is required to be marshalled to see whether a ground under section 12(1)(c) of the Act was made out to grant a decree against the respondent-defendant or not. It is pointed out that in the plaint itself, this fact was categorically pleaded. When a notice was issued to the respondent-defendant, there was no dispute nor any claim with respect to the share by any of the member of the joint Hindu family. In fact, the agreement was got execuited on 26.8.1981, i.e., much before by the respondent-defendant when no suit was filed by any of the coparcener or the joint Hindu family members before the Court. The civil suit was filed by the said person, who executed the agreement in favour of the respondent-defendant only in the year 1982, which was decided on 4.9.1986. The notice was given by the appellant-plaintiff for eviction of the respondent-tenant after terminating the tenancy on 21.5.1987. The tenancy of the respondent-original defendant was terminated with effect from 7.6.1987. The civil suit was filed by the said person, who executed the agreement in favour of the respondent-defendant only in the year 1982, which was decided on 4.9.1986. The notice was given by the appellant-plaintiff for eviction of the respondent-tenant after terminating the tenancy on 21.5.1987. The tenancy of the respondent-original defendant was terminated with effect from 7.6.1987. Such a stand taken by the respondent-defendant was not available to him under the law as the litigation in between the so-called family members went upto the apex Court where ultimately all the claims made by said Devendra Kumar were rejected by upholding the decrees of the Courts below and by way of sympathy, only an amount of Rs.75,000/- was awarded to the said person by the apex Court that too, not as a cost on the appellants herein, therefore, such a plea raised by the respondent-defendant was wholly unjustified. In view of the provisions of section 111(1)(g) of the Transfer of Property Act, 1882, the respondent-defendant was stopped to raise such a plea as the lease was determined by the appellant-plaintiff in the manner indicated under the law and by raising such a plea, the respondent-defendant has forfeited the right of defence. This particular aspect was properly appreciated by the learned civil Court and a decree was granted in favour of the appellant-plaintiff. The findings recorded by the civil Court, were not to be reversed in the manner they have been reversed by the lower appellate Court. Thus, it is contended that the determination of the lease of the respondent-defendant was just and proper and decree of eviction was to be upheld. The reversing judgment and decree of the lower appellate Court is liable to be set aside. 6. Per contra, it is contended by learned counsel for the respondent-defendant that properly law was examined by the lower appellate Court and it was categorically held that in view of the law pronounced by this Court, based on the law laid down by the apex Court, no such decree of eviction could be granted in favour of the appellant-plaintiff and, therefore, if a justified plea was raised by the respondent-defendant disowning the land lordship and title of the appellant-plaintiff over the demise premises, no ground under section 12(1)(c) of the Act was made out to grant a decree of eviction against the respondent-defendant. Thus, it is contended that the error of law committed by the civil Court in granting such a decree was corrected rightly by the lower appellate Court and such a judgment and decree is not liable to be interfered with. The appeal is, thus, liable to be dismissed. 7. Heard learned counsel for the parties at length and perused the record. 8. First of all, it has to be considered whether a ground under section 12(1)(c) of the Act could be said to be made out if ownership of the landlord over the demise premises is denied by the tenant in such circumstances? No much debate is required on this issue as this has been held in catena of decisions by this Court as well as by the apex Court that such a denial would cause a serious prejudice to the landlord as is enumerated in section 12(1)(c) of the Act and, therefore, denial or refusal of ownership or the title on the demise premises by a tenant in respect of a landlord is a good ground for eviction of the tenant from the demise premises. Next question which is required to be considered is, whether denial of such a title of the appellant landlord on the demise premises was bona fide or not? From the pleadings made in the plaint, it is clear that there was some sort of litigation started on earlier occasion in respect of the very same demise premises. In the earlier suit, which was said to be filed in the Court of First Additional Civil Judge Class II Shahdol, bearing Civil Suit No.47-A/1970, it was already held that the original defendant-respondent was the tenant of the appellant-plaintiff in the said demise premises on a monthly rent of Rs.12/-. It appears that this particular finding was not challenged anywhere, and, therefore, no reference to this was made in the written statement filed by the respondent-defendant. In paragraph 3 of the written statement, the respondent-defendant has admitted that there was a litigation between the appellant and the respondent in the Court of Civil Judge Class II Budhar, District Shahdol. The other fact which is stated is relating to that the demise premises was not closed or was put under the lock by the respondent-original defendant. In paragraph 3 of the written statement, the respondent-defendant has admitted that there was a litigation between the appellant and the respondent in the Court of Civil Judge Class II Budhar, District Shahdol. The other fact which is stated is relating to that the demise premises was not closed or was put under the lock by the respondent-original defendant. He categorically contended at paragraph 13 of the written statement that a family dispute in between the appellant and Devendra Kumar, said to be brother of the appellant-plaintiff was going on. However, this suit was said to be filed in the year 1982. Admittedly, before 1982 Devendra Kumar had no right to enter into any agreement with the respondent-defendant for sale of the said house. How he was claiming 1/7 share in the property was not stated, but it is said that he executed an agreement with the respondent-defendant for sale of the very same demise premises to him. How such an agreement could be executed on 26.8.1981 Ex.P-16A, is not clear. If he had admitted the position that in the earlier suit filed by the very same plaintiff-landlord, the respondent-defendant was proved to be a tenant, and the said civil suit filed in the year 1966, was decided in the year 1972 precisely on 14.4.1972 vide Ex.P-4, how could without there being any partition, an agreement could be got executed by one of the alleged member of joint Hindu family for the sale of the demise premises to the respondent, is not stated anywhere in the written statement. This itself is enough to hold that fraudulently just to delay and deny the decree of eviction to the appellant, such a stand was taken by the respondent-defendant. This particular statement made by the respondent-defendant was never found proved that lawfully he has got the agreement executed in his favour by one of the member of the joint Hindu family, who exclusively had the share in the joint Hindu family property and in the said share, the demise premises was also included. This statement of the respondent-defendant itself was enough to grant a decree of eviction against him, which was rightly considered by the trial Court and rightly a decree was granted in favour of the appellant. 9. This statement of the respondent-defendant itself was enough to grant a decree of eviction against him, which was rightly considered by the trial Court and rightly a decree was granted in favour of the appellant. 9. While reversing the judgment and decree of the civil Court, the learned lower appellate Court has tried to summarise the statements of witnesses, but this particular aspect was never taken note of by the learned lower appellate Court and merely because it was said that a decree under section 12(1)(b) of the Act could not be granted, the relief granted to the appellants by the trial Court in the shape of decree of eviction under section 12(1)(c) of the Act was set aside. Such a finding recorded by the lower appellate Court thus cannot be said to be just and proper. 10. Learned counsel for the appellants has placed his reliance in the case of Mirkhan Nathhekhan v. Kutab Ali Tayab Ali [ 1979 JLJ 126 = 1979 MPLJ 155 ], wherein a Division Bench of this Court has taken note of the effect of disclaimer of derivative title. It is contended that the law is well settled that under what circumstances, principle of estoppel would be attracted and a tenant would not be evicted. If the landlord himself did not induct the tenant into the property, but claims his possession under a derivative title, such as assignee, donee, lessee, heir etc., then there is no question of estoppel against the tenant. The tenant already in possession is entitled to show that the plaintiff does not possess the derivative title he claims, but it is in some other person. If the respondent-defendant was claiming that the title was not with the original plaintiff landlord and that the same was vested in someone else, it was his duty to show as to how such a person was entitled of the ownership of the demise premises. The onus cannot be shifted on the appellant-plaintiff. In a suit, if the landlord and tenant relationship is proved and the said finding is not called in question merely because the suit was dismissed, by the tenant still the tenant would be bound by such findings of the Court. The onus cannot be shifted on the appellant-plaintiff. In a suit, if the landlord and tenant relationship is proved and the said finding is not called in question merely because the suit was dismissed, by the tenant still the tenant would be bound by such findings of the Court. That being so, in view of the law laid down by the Division Bench of this Court, the principle of estoppel would be squarely applicable against the respondent-defendant and he is stopped to say that the appellants were not the owner of the demise premises. Further, relying in the case of Bhagwati Prasad v. Rameshchand and others [ 1994 MPLJ 619 ], learned counsel contends that even if such a denial is made, the same is not permitted to be taken back. In view of the fact that in the earlier suit, the tenancy was proved, the relationship of the landlord and tenant was also proved, it was not open to the respondent to file such written statement denying the title of the appellant over the demise premises. Further, relying in the case of Majati Subbarao v. P.V.K. Krishna Rao (deceased) by LRs [ AIR 1989 SC 2187 ], it is contended that, even if this was not raised as a ground for grant of a decree against the respondent-defendant in the original plaint if a denial is raised in the written statement with respect to the title of the landlord, a ground is made out for grant of a decree of eviction of the tenant on this ground alone. Further, relying on the decision of the apex Court in the case of S. Thangappan v. Padmavathy [ AIR 1999 SC 3584 ], it is contended that a lawful default is made with respect to the denial of ownership or title of the landlord by a tenant, it has to be treated as a forbidden act of estoppel under section 116 of the Evidence Act and the tenant would be liable to be evicted on this ground alone. Lastly, relying in the case of Ranjit Narayan v. Laxman Bhai [2005(2) Vidhi Bhasvar 38= 2005(1) MPJR 347 ], it is contended that, if payment of rent itself is admitted by the tenant, a denial of title of landlord established a ground of disclaimer of the title and in such a case the tenant is liable to be evicted. Lastly, relying in the case of Ranjit Narayan v. Laxman Bhai [2005(2) Vidhi Bhasvar 38= 2005(1) MPJR 347 ], it is contended that, if payment of rent itself is admitted by the tenant, a denial of title of landlord established a ground of disclaimer of the title and in such a case the tenant is liable to be evicted. It is contended that in view of these laws, the decree passed by the civil Court was not liable to be interfered by the lower appellate Court and, as such, the judgment and decree impugned is liable to be set aside. 11. After going through the law laid down by Courts and after marshalling the documents available on record as also examining the evidence, it is amply clear that wilfully, with a mala fide intention, the respondent-defendant has denied the title of the appellant-plaintiff over the demise premises just to prolong the litigation. If in the earlier proceedings, a finding was already recorded against the respondent-defendant that he was the tenant of the appellant-plaintiff, except the execution of an agreement with the appellants, no agreement could be executed for sale of the demise premises to the respondent-defendant by anyone. If such was the act, it was to be amply proved that the demise premises in fact fell in share of the said person by the respondent-defendant, which he utterly failed to do so. In view of this judgment and decree of the lower appellate Court cannot be sustained. 12. Consequently, this appeal is allowed. The judgment and decree of the lower appellate Court is set aside and the judgment and decree of the civil Court is affirmed. The appellants will get the cost throughout. Counsel fee at Rs.10,000/- (Rupees Ten thousand) if pre-certified.