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2019 DIGILAW 40 (MP)

Sushree Prem Chauhan v. Vasudev Ramtani

2019-01-10

G.S.AHLUWALIYA

body2019
JUDGMENT : Gurpal Singh Ahluwalia, J. 1. Heard on the question of admission. 2. This Second Appeal under section 100 of CPC has been filed against the Judgment and Decree dated 1-2-2018 passed by VIth A.D.J., Gwalior in F.A. No. 38 of 2016, thereby reversing the Judgment and Decree dated 6-5-2016 passed by XVth Civil Judge, Class 2, Gwalior in Civil Suit No. 5A/2016. 3. The necessary facts for the disposal of the present appeal is that the respondent had filed a suit for eviction against the appellant, which was dismissed by the Trial Court, however, the appeal has been allowed and the Judgment and Decree passed by the Trial Court has been set aside and the decree for eviction has been passed against the appellant under Section 12(1)(a), (c) and (f) of M.P. Accommodation Control Act. 4. The plaintiff/respondent filed a civil suit against the appellant seeking her eviction on the pleadings that the plaintiff is the owner and in possession of building situated in Ganesh Colony, Naya Bazar, Lashkar, Gwalior and its Municipal number is 51/698. The said building was purchased by the plaintiff from its original owner by registered sale deed dated 15-10-1990. Thereafter, on 28-12-1995, a part of the said building was sold by the plaintiff to one Smt. Manju Devi, which is marked with blue lines in the plaint map. Thereafter, the appellant/defendant has purchased the said portion of the house from Smt. Manju Devi. It was further pleaded that the appellant was the tenant of the original owner at the monthly rent of Rs. 1000/- and she became the tenant of the plaintiff, after the said property was purchased by the plaintiff. It was pleaded that the appellant/defendant has not paid the rent for the last several years, in spite of the fact that it was being constantly demanded by the plaintiff, and further the said portion has been sub-let by the appellant/defendant to one Jitendra Kushwaha, whereas the plaintiff is in need of the suit accommodation for the bona fide requirement for residential purposes. It was further pleaded that the plaintiff would reconstruct the house for his own residential purposes. A notice was given to the appellant/defendant on 23-9-2009, which was received by her on 26-9-2009, however, in spite of that she has not paid the rent within two months of receipt of the notice. It was further pleaded that the plaintiff would reconstruct the house for his own residential purposes. A notice was given to the appellant/defendant on 23-9-2009, which was received by her on 26-9-2009, however, in spite of that she has not paid the rent within two months of receipt of the notice. It was further pleaded that since the appellant/defendant has purchased a part of the house, therefore, she was liable to pay Rs.400/- per month by way of rent, however, the same has not been paid. It was further pleaded that the defendant/appellant has also denied the ownership of the plaintiff. 5. The defendant/appellant filed her written statement and denied the plaint averments. It was denied that the plaintiff is the owner and in possession of the suit property. The fact of purchasing the property in question by registered sale deed dated 15-10-1990 was also denied. It was further pleaded that one Smt. Ram Kishori Asthana was the owner of the property in dispute and according to the plaintiff, he had purchased the property from her. The pleading that the appellant/defendant has purchased the portion marked with blue ink from Smt. Manju Devi is not denied, but neither the plaintiff nor Smt. Manju Devi were in possession of the suit property. In order to avoid any further legal complication, the appellant/defendant has purchased the portion marked with blue ink from Smt. Manju Devi by registered sale deed dated 12-6-2000. It was further denied that the defendant had ever been the tenant of the plaintiff at the monthly rent of Rs. 1000/-. It was further denied that the defendant ever became the tenant of the plaintiff after the said property was purchased by the plaintiff. The father of the defendant and Shri Anand Asthana were family friends, therefore, Shri Asthana had allowed the defendant to reside in the said premises. The relationship between the plaintiff and the defendant were also denied. The issuance of notice for demand of rent was also denied. It was further admitted that Jitendra Singh Kushwaha is also residing in the same premises, but it was pleaded that Jitendra Singh Kushwaha is just like a son of the defendant and out of love, he is residing in the said premises along with his wife and children. The bona fide requirement of the plaintiff for his residential purposes was also denied. The bona fide requirement of the plaintiff for his residential purposes was also denied. It was further pleaded that the notice sent by the plaintiff was never received by the defendant, but it was received by wife of Jitendra Singh Kushwaha. It was further pleaded that when the plaintiff and defendant had never been the landlord and tenant, then the question of denial of title of the plaintiff does not arise. 6. The Trial Court, after framing issues, hearing both the parties and after recording evidence, dismissed the suit. 7. Being aggrieved by the Judgment and Decree passed by the Trial Court, the respondent/plaintiff filed an appeal and the appellate Court by Judgment and Decree dated 1-2-2018, has allowed the appeal and decreed the suit and the decree for eviction has been passed under Section 12(1)(a), (c) and (f) of M.P. Accommodation Control Act. 8. Challenging the Judgment and Decree passed by the First Appellate Court, it is submitted by the counsel for the appellant/defendant that when there was no relationship of landlord and tenant between the plaintiff and defendant, then the question of payment of rent or denial of title or bona fide requirement of suit house for residential purposes does not arise. It is further submitted that Smt. Ram Kishori Asthana was the owner of the property and the defendant/appellant was inducted by Smt. R.K. Asthana and the defendant had never been the tenant of the plaintiff. It is further submitted that the plaintiff had filed an application under Order 41, Rule 27 C.P.C., before the Appellate Court, and the Appellate Court, without adhering to the provisions of Order 41, Rule 28 C.P.C., has wrongly allowed the said application. 9. Per contra, it is submitted by the counsel for the plaintiff/respondent that it is the case of the plaintiff that after purchasing the property in question, he had sold a part of the said property to Smt. Manju Devi and the defendant in her turn, purchased the said portion of the house from Smt. Manju Devi. The defendant, in her written statement has admitted that she had purchased the property from Smt. Manju Devi. It has not been denied by the appellant/defendant that Smt. Manju Devi had not purchased a part of the property from the plaintiff. The defendant, in her written statement has admitted that she had purchased the property from Smt. Manju Devi. It has not been denied by the appellant/defendant that Smt. Manju Devi had not purchased a part of the property from the plaintiff. Thus, it is clear that denial of the fact of purchase of the suit property by the plaintiff from Smt. R.K. Asthana and denial of landlord-tenant relationship, amounts to denial of title warranting her eviction under Section 12(1)(c) of M.P. Accommodation Control Act. The appellant/defendant has also admitted the receipt of the rent-demand notice, however, she has stated that the said notice was received by the wife of Jitendra Singh Kushwaha and when it is the case of the appellant that Jitendra Singh Kushwaha is residing along with her in the suit premises, being like a son of the appellant, then it is clear that in spite of the service of notice, the rent was not deposited by the appellant. It is further submitted that the suit property is bona fidely required for residential purposes. It is further submitted that since the correction deed was executed after the dismissal of the suit, therefore, it cannot be said that the correction deed filed along with the application under Order 41, Rule 27 of C.P.C. was wrongly not filed before the Trial Court. 10. Heard the learned counsel for the parties. 11. In the present case, it is the case of the plaintiff/respondent, that he had purchased the entire building from its original owner and subsequently, in the year 1990, had sold a part of the building to Smt. Manju Devi, who in her turn, sold the said part of the building to the appellant/defendant. The appellant has admitted the fact that she had purchased the property from Smt. Manju Devi. It is the case of the appellant herself, that Smt. R.K. Asthana was the original owner. Therefore, it was obligatory on the part of the appellant to explain that how, Smt. Manju Devi became the owner of the said property, because it is the case of the plaintiff that it was he, who had sold a portion of the building to Smt. Manju Devi. Therefore, it was obligatory on the part of the appellant to explain that how, Smt. Manju Devi became the owner of the said property, because it is the case of the plaintiff that it was he, who had sold a portion of the building to Smt. Manju Devi. The appellant has not denied that Smt. Manju Devi had never purchased a part of the building from the plaintiff, even it has not been pleaded by the appellant that Smt. Manju Devi had purchased the property from Smt. R.K. Asthana, the original owner. The respondent has filed the copy of the sale deed Ex. P.3C dated 28-12-1995 executed in favour of Smt. Manju Devi. The appellant, Ms. Prem Chouhan (D.W. 1) has admitted in her examination-in-chief, that the plaintiff had purchased the building adjoining to the suit property from R.K. Asthana which was sold to Smt. Manju Devi by the plaintiff and the appellant in her turn, purchased the same from Smt. Manju Devi. However, the appellant has not clarified that how She claims her ownership over the suit property? She has further stated that She is in possession of the suit property as well as the property purchased by her from Smt. Manju Devi' in the capacity of an owner. However, she has not clarified as to how she claims herself to be the owner of the suit property. No document of title has been filed by the appellant. 12. It is submitted by the counsel for the respondent/plaintiff that when there is a discrepancy in the sale deed, then the boundaries would prevail over the measurement and in the present case, the boundaries were clearly mentioned in the sale deed and merely because there was some discrepancy in the measurement and the map, therefore, the correction deed was executed on 4-4-2017 and since the said document came into existence after the disposal of the civil suit, therefore, the same could not be filed at the earliest. As the correction deed was not in existence during the pendency of the suit and thus, the submission made by the counsel for the appellant that the Appellate Court committed material irregularity by allowing the application filed under Order 41, Rule 27 of C.P.C. without adhering to the provisions of Rule 28 of Order 47 C.P.C. cannot be accepted, because the appellant herself has failed to establish as to how she claims to be the owner of the suit property. 13. As the plaintiff/respondent had purchased the entire building from Smt. R.K. Asthana, out of which a part of the same was sold to Smt. Manju Devi, and the appellant, in her turn, had purchased the said part of the building from Smt. Manju Devi and in the light of the correction deed and in absence of any explanation by the appellant as to how she claims herself to be the owner of the remaining part of the building, thus the plaintiff has established the landlord-tenant relationship between the plaintiff and the defendant. Since, the appellant has denied the relationship of landlord-tenant, therefore, the plaintiff is entitled for the decree of eviction on the ground of nuisance by denying the title of the landlord. 14. So far as the decree under Section 12(1)(a) and (f) of the M.P. Accommodation Control Act, is concerned, it was merely submitted by the counsel for the appellant that as the relationship of landlord-tenant does not exists between the parties, therefore, the appellant was not liable to pay the rent to the plaintiff, nor the bona fide requirement of plaintiff for residential purposes can be proved. However, as this Court has come to a conclusion that the plaintiff and the defendant were landlord-tenant, therefore, the plaintiff is entitled for decree under Section 12(1)(a) and (f) of M.P. Accommodation Control Act, also. 15. No other submission was advanced by the counsel for the parties. 16. As no Substantial Question of Law arises in the present case, accordingly, it is held that the First Appellate Court did not commit any mistake by allowing the appeal filed by the plaintiff/respondent and accordingly, the Judgment and Decree dated 1-2-2018 passed by VIth A.D.J., Gwalior in F.A. No. 38 of 2016, is hereby affirmed. 17. The appeal fails and is dismissed in limine. 18. Decree be drawn accordingly.