Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 858 (MP)

Girraj Iron Stores v. Madho Prasad Jain

2017-07-24

VIVEK AGARWAL

body2017
ORDER 1. This second appeal has been filed by the defendants being aggrieved by judgment and decree dated 23.3.2017 passed by the 4th Additional District Judge, Morena, in First Appeal No.13-A/2013 arising out of judgment and decree dated 29.2.2012 passed by the First Civil Judge, Class I, Morena, in Civil Suit No.2-A/2011. 2. The main ground to assail the impugned judgment and decree which has been taken by the learned counsel for the appellants is that under section 12(1)(f) of the M.P. Accommodation Control Act (in short “the Act”) owner of the property alone can seek eviction and since the property was in the name of one Vimalchand Jain and Mathura Bai widow of Late Jawaharlal Jain and they had sold it in the name of Madhoprasad and Chandraprakash through two separate sale deeds, therefore, plaintiff Madhoprasad cannot be considered as owner of the property, and, therefore, the decree of eviction passed by the Courts below suffers from infirmity. He has submitted that in fact this appeal gives rise to substantial questions of law, and, therefore, no decree of eviction could have been passed against the appellants. According to the appellants, separate share of Chandraprakash was transferred in favour of the plaintiff vide document Ex.P-7 which is a void transaction and since that transaction is void, it cannot be said that any valid relinquishment of share of Chandraprakash had taken place in favour of plaintiff Madhoprasad, therefore, the property in question had not devolved upon plaintiff Madhoprasad as the owner in toto, and therefore, he had no authority to seek decree of eviction under the provisions of section 12(1)(f) of the Act. It is also submitted that Courts below have failed to make a distinction between bona fide need and fanciful idea to get the defendants/appellants evicted on the pleading and evidence so adduced by the plaintiff's side. Reliance has been placed on the judgment of this Court in the case of Dayal Das (Dead) through L.Rs. Smt. Kamla Chenani and others v. Rajendra Prasad Gautam as reported in, [2012(2) MPLJ 460], wherein this Court has held that in a decree for eviction on the ground of bona fide requirement plaintiff is required to prove not only that he is a landlord but has also to prove that he is owner of the premises. Smt. Kamla Chenani and others v. Rajendra Prasad Gautam as reported in, [2012(2) MPLJ 460], wherein this Court has held that in a decree for eviction on the ground of bona fide requirement plaintiff is required to prove not only that he is a landlord but has also to prove that he is owner of the premises. It has been discussed that if a person is receiving or is entitled to receive the rent of any accommodation, then he would come within the ambit of definition of landlord, but merely receiving or having right to receive the rent cannot be said that he would be the owner of said accommodation unless and until he proves it. In that case, plaintiff was only collecting rent from the defendant for the true owners and if that would be the position he cannot be said to be owner even in narrow sense so as to evict the appellant/defendant from the suit premises under section 12(1)(f) of the Act. In para 30 of the said judgment this Court was pleased to observe that word “owner” has not been defined in the Act although words landlord and tenant are defined in section 2(b) and (i) respectively. In order to obtain a decree of eviction on the ground of bona fide requirement envisaged in clause (f) of the Act, according to me, plaintiff is required to prove not only that he is a landlord, but at the same time he has to prove that he is also the owner of the premises for the simple reason that the word owner has been deliberately used by the Legislature under clause (f) of the Act. In that case, plaintiff had admitted in his cross-examination that his name was never recorded as owner in the record of Municipal Corporation and further admitted that suit property was recorded in the name of a third person and he was accepting the rent on behalf of that third person. Appellants have also placed reliance on the judgment of this Court in the case of Premshankar v. Chandmal as reported in, [ 1985 MPWN 64 ], wherein it has been reiterated that if landlord is not owner of the tenanted accommodation, he cannot seek eviction decree under the provisions of section 12(1)(f) of the Act. 3. Appellants have also placed reliance on the judgment of this Court in the case of Premshankar v. Chandmal as reported in, [ 1985 MPWN 64 ], wherein it has been reiterated that if landlord is not owner of the tenanted accommodation, he cannot seek eviction decree under the provisions of section 12(1)(f) of the Act. 3. On the other hand, learned counsel for respondent No.1/landlord submits that there are no pleadings in regard to purchase of properties vide different sale deeds and ownership being not devolved upon respondent No.1/Madhoprasad. It is submitted that Chandraprakash was also one of the plaintiff, and, therefore, if there was any objection as to the ownership of Madhoprasad, then it could have been raised by Chandraprakash and not by the defendants/tenants. Reliance has been placed on the judgment of the Supreme Court in the case of Kishor Kirtilal Mehta and others v. Lilavati Kirtilal Mehta Medical Trust and others as reported in, [ (2007)10 SCC 21 ], wherein it has been held that such part of the evidence is to be discarded which is outside the pleadings. In that regard, Hon'ble Supreme Court has categorically mentioned in para 13 of the said judgment that there cannot be any doubt that no amount of evidence can be looked into on a plea never put forward [Siddik Mohd. Shah v. Saran, AIR 1930 PC 57 (1)]. Similarly, learned counsel for respondent No.1/landlord has submitted that there is a categorical finding of the appellate Court that rent is being paid to Madhoprasad, and, therefore, it was not open to the tenants to seek a declaration that relinquishment deed was null and void. He has relied heavily on Ex.P-7 and Ex.P- 8 to show ownership of Madhoprasad and submits that in fact the ownership had devolved on Madhoprasad by way of family settlement and relinquishment deed and that has been rightly appreciated by the Courts below. In this regard, reliance has been placed on the judgment of this Court in the case of Mohni Bai Gurdasmal Hirwani v. Kundanlal Chotelal Jain as reported in, [2000(1) MPLJ 571], wherein it has been held that tenant cannot challenge partition unless it is sham or bogus. He also submits that in fact defendant No.11 before the trial Court had accepted that he had filed partition deed before the trial Court. He also submits that in fact defendant No.11 before the trial Court had accepted that he had filed partition deed before the trial Court. Once defendant No.11 accepted filing of partition deed before the trial Court, then it was not open to the defendants/tenants to question the partition deed on the basis of which ownership had devolved on Madhoprasad. It is also submitted that Ex.P-8 was in fact executed prior to filing of the suit for eviction, and, therefore, findings of the Courts below on the basis of such documents cannot be disturbed at the instance of defendants/tenants. Learned counsel has also placed reliance on the decision in the case of Y.S.Chen (Dr.) v. Batubai as reported in, [ 1991 JLJ 144 ], wherein this Court was pleased to hold that once landlady became owner on the basis of gift in her favour and tenant started paying rent, he cannot thereafter, challenge gift in favour of landlady. Placing reliance on this judgment, it is submitted by learned counsel for respondent No.1 that it is an admitted position that rent is being paid to Madhoprasad and on the basis of partition deed, he had become owner, therefore, that cannot be challenged on future date. Learned counsel also submits that there is no challenge to the finding of bona fide requirement of the suit premises for starting the business of son of the plaintiff, namely Neeraj. In view of such submissions, he prays for dismissal of the second appeal as it does not give rise to any substantial question of law. 4. The issue which is to be decided in this second appeal is whether plaintiff Madhoprasad had become owner of the property in the light of relinquishment deed Ex.P-7 and Ex.P-8. In para 27 of the impugned judgment of the first appellate Court, this aspect has been dealt with and learned first appellate Court has recorded a categorical finding that defendant Chandraprakash is son of Shankarlal who is brother of Madhoprasad. It has also come on record that defendant No.11 and plaintiff admitted purchasing the properties in question from the income of joint family. In the light of this fact, both the plaintiff and defendant No.11 became joint owner, and, therefore, defendant No.11 was entitled to relinquish his share in favour of Madhoprasad. It has also come on record that defendant No.11 and plaintiff admitted purchasing the properties in question from the income of joint family. In the light of this fact, both the plaintiff and defendant No.11 became joint owner, and, therefore, defendant No.11 was entitled to relinquish his share in favour of Madhoprasad. Thus, the Court below has upheld the deed of relinquishment in favour of Madhoprasad and has also held that in the light of said deed of relinquishment, Madhoprasad had become owner of the suit property. Accordingly, in view of the judgment of this Court in the case of Mohni Bai Gurdasmal Hirwani (supra), tenant had no locus to challenge the deed of relinquishment and since the tenant has failed to question and challenge the bona fide need of the property by the owner Madhoprasad for the business of his son and in fact has not argued on this aspect of bona fide need in the present appeal and has confined his arguments only to the question of ownership in the hands of Madhoprasad, this Court is of the opinion that once relinquishment deed was effected by Chandraprakash in favour of Madhoprasad, then in view of such relinquishment deed Madhoprasad had become owner and further such relinquishment deed could not have been challenged by the tenants, therefore, owner on the basis of his bona fide need was entitled to seek a decree of eviction under the provisions of section 12(1)(f) of the Act. 5. In view of such provisions of law, this Court is of the opinion that there is no infirmity or illegality in the impugned judgment and decree. Thus, the appeal fails and is dismissed.