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Madhya Pradesh High Court · body

2017 DIGILAW 490 (MP)

Ravi Prakash v. Hussain Ali

2017-04-11

ROHIT ARYA

body2017
JUDGMENT 1. This appeal by plaintiff under section 100 CPC is directed against the reversing judgment and decree dated 8.5.2003 passed in Civil Appeal No.90-A/2002 dismissing the suit seeking eviction on the grounds of “arrears of rent” under section 12(1)(a) since August, 1994 at the rate of Rs.140/- per month till April, 1995 and “bona fide need” under section 12(1)(f) of the Madhya Pradesh Accommodation Control Act, 1961 (For short ‘the 1961 Act”). The trial Court vide judgment dated 18.9.2002 passed in Civil Suit No.91A/1995 has decreed the suit under section 12(1)(f) of the 1961 Act and also awarded damages at the rate of Rs.140/- per month till eviction. 2. This Court while admitting the appeal on 28.4.2004 has framed the following substantial questions of law : “(i) Whether learned lower appellate Court was justified in holding that sale deed in favour of plaintiff appears to be sham when no such pleading was raised and proved by the defendant and after attorning in favour of the plaintiff such plea was not available to the defendant and the suit could not be dismissed on this ground? (ii) Whether the Courts below have erred in dismissing the plaintiff’s suit on the ground of section 12(1)(e) of the M.P. Accommodation Control Act for want of funds and the findings negative the plea of bona fide need is perverse? And modified the second question of law vide order dated 6.12.2016. (ii) Whether the Courts below have erred in dismissing the plaintiff’s suit on the ground of section 12(1)(f) of the M.P. Accommodation Control Act for want of funds and the findings negative the plea of bona fide need is perverse?” 3. Facts relevant and necessary for disposal of this appeal are that the plaintiff-appellant has filed a suit against defendant/respondent/tenant for eviction on the grounds of “arrears of rent” 12(1)(a) and “bona fide need” under section 12(1)(f) of the 1961 Act inter alia contending that the shop situated at Loha Bazar, Ward No.13, Vidisha (For short, ‘the suit shop’) is of his ownership, having purchased the same by a registered sale deed dated 29.6.1993. By a notice dated 15.7.1993 (Exhibit P-1), served upon the defendant, the plaintiff made known the defendant that suit shop has been purchased by him and now the defendant has become his tenant in the suit shop and, therefore, called upon defendant to pay arrears of rent from December,1992 to June, 1993 at the rate of Rs.140/- per month, total Rs.980/-. Thereafter, the defendant paid rent to the plaintiff and obtained receipts vide Exhibits D-2 and D-3. The plaintiff intended to run a hardware business in the suit shop and he did not have any suitable accommodation for the said purpose. Since August, 1994, the defendant had not paid rent. The plaintiff by registered notice dated 26.12.1994 (Exhibit P-5) terminated the tenancy from the midnight of 28.2.1995 calling upon the defendant to vacate the suit shop and also pay the arrears of rent . Neither defendant paid the arrears of rent nor vacated the suit shop. 4. Defendant denied plaint averments inter alia contending that the plaintiff has a big Hindu joint family having number of houses and shops in Vidisha. Plaintiff does not reside at Vidisha as his father is in service at Ratlam. Plaintiff is a student. He has no bona fide requirement of the suit shop for running the business. The registered sale deed dated 29.6.1993 in favour of the plaintiff does not appear to be bona fide and the same has been executed for collateral purpose. With the aforesaid pleadings, suit was sought to be dismissed. 5. On the aforesaid pleadings, the trial Court framed issues and allowed parties to lead evidence. 6. The trial Court upon critical evaluation of the evidence on record has answered issue No.1 related to “bona fide need” of the plaintiff in his favour as discussed in paragraphs 6 to 20 of the judgment. It has been found that the plaintiff has no other non-residential accommodation of his own within the vicinity of Vidisha for the purpose of starting his business. Referring to the depositions of the plaintiff who is a B.Sc., and ITI; an educated person, the aforesaid need has been found to be bona fide (paragraphs 11 and 15). The trial Court has rejected plea that the suit shop is not of the ownership of plaintiff and a sham transaction to help facilitate eviction of the tenant (paragraphs 12 to 14). The trial Court has rejected plea that the suit shop is not of the ownership of plaintiff and a sham transaction to help facilitate eviction of the tenant (paragraphs 12 to 14). The defendant failed to discharge the burden to prove the aforesaid fact. The defendant has not disputed the title of the plaintiff in paragraph 19 of his written statement. Further, by notice dated 15.7.1993 (Exhibit P-1), the plaintiff’s ownership of the suit shop was duly communicated to the defendant. The defendant has paid rent to the plaintiff and obtained receipt vide Exhibit P-4, therefore, the defendant estopped from challenging title of the plaintiff in the context of eviction under section 12(1)(f) of the 1961 Act. The trial Court has also rejected plea of the defendant that the plaintiff has other suitable accommodation to run the business and dealt with the same in paragraph 24 of the judgment, on the premise that there is no such pleading either in the written statement or in his deposition before the Court. Accordingly, decreed the suit under sections 12(1)(f) and 12(1)(k) of the 1961 Act. 7. On appeal, the first appellate Court has reversed the judgment and decree passed by the trial Court inter alia holding that to sustain the claim for eviction of nonresidential premises under section 12(1)(f) of the 1961 Act, the suit premises must be of the ownership of the landlord. In the instance case, the plaintiff since has not produced the registered sale deed dated 29.6.1993, therefore, the plaintiff has not fulfilled the requirement under section 12(1(f) of the 1961 Act. Hence, that issue could not have been addressed by the trial Court for order of eviction. Consequently, set aside the judgment and decree passed by the trial Court and dismissed the suit. 8. While assailing the impugned judgment and decree passed by the first appellate Court, the learned counsel for the appellant/plaintiff/landlord contends that admittedly, by a notice dated 15.7.1993 (Exhibit P-1), the plaintiff has disclosed his identity to the defendant stating that suit shop has been purchased by him and now the defendant has become his tenant in the suit shop and also called upon the defendant to pay him arrears of rent. The defendant started paying the rent as is evident from the receipt, Exhibit P-4. As such, there is attornment of tenancy. The defendant started paying the rent as is evident from the receipt, Exhibit P-4. As such, there is attornment of tenancy. That apart, in the entire written statement, there is no denial of plaintiff’s title instead in paragraph 19 of the written statement, the defendant has not discarded title of the plaintiff, however, it is stated that the alleged sale appears to be ‘benami’ transaction and, therefore, the same cannot be used for eviction under the 1961 Act. 9. Learned counsel further contends that law is well settled that burden is upon the defendant to prove that the sale was ‘benami’ transaction and the defendant failed to discharge the burden as rightly found by the trial Court. Learned counsel has relied upon the judgment of the Hon’ble Supreme Court in the case of Anar Devi (Smt.) v. Nathu Ram [ (1994)4 SCC 250 ], to bolster his submission wherein the Court has expressed a view that the tenant from the beginning of the tenancy or subsequently, is estopped from denying the landlord’s title to the premises by acknowledgment of landlord’s title by attornment. Therefore, even if the sale deed dated 29.6.1993 was not produced, the claim of the plaintiff seeking eviction under section 12(1)(f) of the 1961 Act could not have been denied. He has further relied upon the judgment of Hon’ble Supreme Court in the case of Ragavendra Kumar v. Firm Prem Machinery and Co. [ 2000(1) JLJ 186 ], and this Court in the cases of Girraj Kishore v. Kamla Bai [ 2001(1) MPLJ 361 ], Hariram v. Raj Bahadur Gupta [1996(II) MPWN SN 30], and Mattulal v. Radhelal [1975 JLJ 1 (SC)], in the context of bona fide need of the suit shop of the plaintiff. 10. Learned counsel contends that there is no other suitable accommodation in the ownership of plaintiff available to him at Vidisha as evident from the evidence on record and the findings recorded by the trial Court in that behalf are impeccable as the need was found to be bona fide for the reason that the plaintiff has studied B.Sc. and ITI and intended to set up own business in the suit shop, therefore, the justification for denial of eviction on the premise that the plaintiff does not have experience in the business is more of desperation. and ITI and intended to set up own business in the suit shop, therefore, the justification for denial of eviction on the premise that the plaintiff does not have experience in the business is more of desperation. Such plea is not tenable in view of judgment of the Hon’ble Supreme Court in the case of Ram Babu Agarwal v. Jay Kishan Das [ (2010)1 SCC 164 ], wherein in paragraph 7, it has been held that a person can start a new business even if he has no experience. Paragraphs 7 to 9 are quoted below : “7. We are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new business even if they do not have experience in the new business, and sometimes they are successful in the new business also. Hence, we are of the opinion that the High Court should have gone deeper into the question of bona fide need and not rejected it only on the ground that Giriraj has no experience in footwear business. 8. For the reasons given above, we set aside the impugned judgments of the High Court and the trial Court on the question of bona fide need and remand the matter to the trial Court only to decide the issue of bona fide need afresh. Parties may lead fresh evidence on their pleadings and the trial Court shall decide the matter expeditiously thereafter. 9. The appeal is allowed on the question of bona fide need only to the extent indicated above...” 11. The Hon’ble Supreme Court in the case of Prativa Devi v. T.K. Krishnan [ (1996)5 SCC 353 ], has held that it is a settled law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. With the aforesaid submissions, learned counsel prays for setting aside the judgment and decree passed by the first appellate Court. 12. With the aforesaid submissions, learned counsel prays for setting aside the judgment and decree passed by the first appellate Court. 12. Per contra, learned counsel for the respondent while supporting the impugned judgment has sought for dismissal of the appeal inter alia contending that though plaintiff claimed to have purchased the suit shop but since has not produced the sale deed, therefore, the sale was not proved. Hence, unless, the plaintiff could be said to own the suit premises, he cannot seek eviction of the suit shop under section 12(1)(f) of the 1961 Act. It is further contended that even assuming that there was a sale of the suit property during currency of the tenancy of the respondent/defendant, as contended by the plaintiff, the defendant/tenant has all rights to question the derivative title of the plaintiff bona fidely and the estoppel under section 116 of the Evidence Act, 1872 and section 109 of the Transfer of Property Act, 1882 does not operate against the defendant/tenant to resist the claim for eviction under section 12(1)(f) of the 1961 Act. Therefore, the burden is upon the plaintiff to demonstrate derivative title for sustainability of the claim for eviction. The burden has not been discharged by the plaintiff, therefore, the first appellate Court was justified having rejected the claim for eviction on the said ground. Alternately, it is further contended that the alleged sale as asserted by the plaintiff is a sham transaction as evident from the deposition of the plaintiff in paragraph 4 of his examination-in-chief wherein he has stated that the suit shop may be given back to the original owner, if occasion so arises. Hence, the projected need of the plaintiff is not bona fide, as such, the first appellate Court was justified having dismissed the suit. 13. Before adverting to the rival contentions, it is opposite to reiterate the law as regards the concept of title in the context of the rent control laws and the scope of challenge to title and derivative title of the plaintiff in a eviction suit to resist an eviction proceeding under section 12(1)(e) or 12(1)(f) of the 1961 Act not tantamounting to disclaimer of title under section 12(1)(c) of the 1961 Act. 14. It is settled principle of law that the concept of ownership in a landlord-tenant dispute under the rent control laws is not the same as in a title suit. 14. It is settled principle of law that the concept of ownership in a landlord-tenant dispute under the rent control laws is not the same as in a title suit. The ownership is a relative term and depends upon the context in which it is used. Under rent control laws, the landlord can be said to be the owner if he is entitled in his own legal right, as distinguished from for and on behalf of someone else to seek eviction of the tenant and also have a right to retain control and use the premises for himself. Further, the degree of proof of ownership in a landlord-tenant dispute is not the same as in title suit and what may suffice and hold good as proof of ownership in the landlord-tenant dispute may not be enough to maintain a claim for ownership in a title suit {Sheela v. Firm Prahlad Rai Prem Prakash [ (2002)3 SCC 375 referred to]}. 15. Denial of landlord’s title and/or disclaimer of tenancy by tenant has been held to be an act likely to affect adversely and substantially the interest of the landlord, therefore, the same has been set out as a ground for eviction under section 12(1)(c) of the 1961 Act and the genesis therefor flows from section 116 of the Evidence Act which contemplates the rule of estoppel against such denial of title by the tenant and it flows as a corollary therefrom that the factum of existence of landlord-tenant relationship during continuous of tenancy tantamounts for proof of ownership of the landlord over the tenanted premises at the very inception of tenancy qua the tenant. 16. Further, to bring an action within the fold of disclaimer of title as a ground for eviction under section 12(1)(c) of the 1961 Act of the tenanted premises, such disclaimer or denial of title, the tenant should by his character in clear and unequivocal terms set up title of the landlord in himself or in a third party. 16. Further, to bring an action within the fold of disclaimer of title as a ground for eviction under section 12(1)(c) of the 1961 Act of the tenanted premises, such disclaimer or denial of title, the tenant should by his character in clear and unequivocal terms set up title of the landlord in himself or in a third party. However, a specific plea in the written statement calling upon the landlord to prove his ownership or putting the landlord to proof of his title so as to protect himself (i.e., the tenant) against the action of eviction but without disowning the character of his tenancy as tenant cannot be said to have denied the title of landlord or disclaimed the tenancy and, therefore, will not attract the rigour of section 12(1)(c) of the 1961 Act. Therefore, the intention of the tenant has to be assessed from the nature of plea raised by him which is determinative and decisive. 17. Law is also well settled that the rule of estoppel under section 116 of the Evidence Act, applies where the tenant has been let into possession by the landlord. However, where the landlord himself has not inducted the tenant in the suit premises and claims his position under a derivative title, the law of estoppel has no application against the tenant. The tenant is entitled to show that the plaintiff does not possess derivative title he claims {Kumar Kishna Prasad Lal Singha Deo v. Barabonic Coal Concern Limited [ AIR 1937 PC 251 , referred to]}. 18. The law is also well settled as regards the “doctrine of tenant’s estoppel” to question or disclaim perfection of title of the landlord despite attornment of tenancy in his favour. The Hon’ble Supreme Court in the case of Anar Devi (Smt.) v. Nathu Ram [ (1994) 4 SCC 250 ], with reference to the judgments of the Judicial Committee and that of the Hon’ble Supreme Court addressed on the scope of applicability of section 116 of the Evidence Act, in the aforesaid context has held in paragraph 13 as under : “.... Ever since, the accepted position is that section 116 of the Evidence Act applies and estops even a person already in possession as tenant under one landlord from denying the title of his subsequent landlord when once he acknowledges him as his landlord by attainment or conduct. Ever since, the accepted position is that section 116 of the Evidence Act applies and estops even a person already in possession as tenant under one landlord from denying the title of his subsequent landlord when once he acknowledges him as his landlord by attainment or conduct. Therefore, a tenant of immovable property under landlord who becomes a tenant under another landlord by accepting him to be the owner who had derived title from the former landlord, cannot be permitted to deny the latter’s title, even when he is sought to be evicted by the latter on a permitted ground.” (Emphasis supplied) 19. Now, turning to the facts of the case, the suit shop was purchased by the plaintiff vide registered sale deed dated 29.6.1993. Through a notice dated 15.7.1993 (Exhibit P-1), the plaintiff had informed and brought to the knowledge of the defendant about the said change of ownership and further demanded payment of rent for the period December, 1992 to June, 1993 at the rate of Rs.140/- per month, total Rs.980/-. The defendant has acknowledged the plaintiff as landlord and paid rent and obtained receipt vide Exhibit D-1 dated 29.6.1993. Thereafter, the defendant used to pay rent and obtained receipts from time to time as evident from Exhibit P-4. As such, the defendant has attorned tenancy in favour of the plaintiff. Since August, 1994, no rent has been paid, therefore, the plaintiff served a notice dated 26.12.1994 (Exhibit P-5) terminating the tenancy from midnight of 28.2.1995, therefore, called upon defendant/tenant to vacate the suit shop. That apart, as a matter of fact, there is no challenge to the derivative title or disclaimer of title by defendant rather there is an acknowledgment of such sale in paragraph 19 of the written statement. Therefore, even if sale deed was not produced by the plaintiff, this by itself, shall not disentitle the plaintiff to bring an action or suit for eviction of the suit shop under section 12(1)(f) of the Act 1961. Such circumstances, does not entitle the defendant to allege the sale deed in favour of the plaintiff as sham transaction without any cogent and relevant material evidence in support thereof. The view taken by this Court finds support from the judgment of the Hon’ble Supreme Court in the case of Anar Devi (Smt.) (supra). Such circumstances, does not entitle the defendant to allege the sale deed in favour of the plaintiff as sham transaction without any cogent and relevant material evidence in support thereof. The view taken by this Court finds support from the judgment of the Hon’ble Supreme Court in the case of Anar Devi (Smt.) (supra). Further, the plaintiff has pleaded and also proved the requirement of suit shop for running the hardware business having no other suitable alternate accommodation available in Vidisha. The testimony of the plaintiff has remained in tact in his cross-examination in that context. The contention that as father of the plaintiff had paid the amount of sale consideration for purchase of the suit shop in favour of the plaintiff and the plaintiff was a student and, therefore, the sale and need, both were not bona fide, in the opinion of this Court cannot be countenanced. Merely for the reason that father had paid the amount of consideration of the suit shop, this by itself, shall not be construed that the plaintiff is not the owner of the suit shop although sale deed was executed and registered in his name. That apart, the plaintiff who is B.Sc. and ITI qualified person is at the right age to start his business. The view taken by this Court finds support from the judgment of Hon’ble Supreme Court in the case of Ram Babu Agarwal (supra), wherein it is held that a person can start a new business even if he has no experience. Hence, the plaintiff has made out a ground seeking eviction of the suit shop under section 12(1)(f) of the 1961 Act. It is accordingly held that the trial Court has not committed any error on facts and in law while decreeing the suit of the plaintiff. 20. The judgment cited by the respondent/defendant in the case of Makhan Nathhekhan v. Kutub Ali Tayab Ali [ 1979 MPLJ 155 ], is distinguishable and of no assistance. 21. Consequently, this Court is of the considered opinion that the first appellate Court was not justified having dismissed the suit. 22. The substantial questions are answered in the affirmative in favour of the appellant/plaintiff and against the defendant. 23. The appeal is hereby allowed and disposed of. Let a decree be drawn, accordingly.