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2020 DIGILAW 497 (MP)

Kamlesh Jain v. Sangeeta Jain And Others

2020-05-01

VISHAL DHAGAT

body2020
JUDGMENT 1. Appellant was defendant before the trial court and he had filed the suit for vacant possession of suit property, mesne profit for the month July 2009 till realization. 2. As per the plaintiffs case Smt. Kasturi Bai and Smt. Sundar Bai had purchased a house at Subhash Chowk in the year 1948 from one Shri Subrati. Smt. Sundar Bai had sold her half share of the suit property to Parchamal on 1.11. 2008. After death of Smt. Kasturi Bai, the plaintiffs who were her successors got the suit property that is house in question. At that time, there were two tenants in the house. Plaintiffs give notice to tenant who was living in the lower part of the house. He gave possession of the house to the plaintiffs. In the part of the house of Sundar Bai, Kamlesh Jain the present appellant was tenant. At the time of registry by Sundar Bai that is on 1.11.2008 Kamlesh Jain after receiving an amount of Rs.1,70,000/- vacated the house and illegally entered in the part of the house belonging to Kasturi Bai. Plaintiffs received information on 14.7.2009 and they filed a report at Police Station Balaghat but no action has been taken therefore, they have to file the present suit for eviction, mesne profit and possession. 3. Plaintiffs had filed a suit before the Controlling Authority Balaghat under Section 25 and 26 of M.P. Accommodation Control Act, 1961 for payment of rent. Rent Controlling Authority has dismissed the suit on the ground that non-applicants were not tenant of the applicant that is the plaintiffs and defendants were held to be as trespasser. Respondents had filed their written statements before the trial Court and they had admitted that house in question belongs to plaintiff who is owner of suit property. The defendants were tenant in the said house and rent is taken by Arun Kumar son of Sundar Bai. Application was dismissed by Rent Controlling Authority on the ground of non-appearance and not on merits. Suit is filed maliciously to harass the defendants. 4. Learned trial Court allowed and decreed the suit vide its judgment and decree dated 03.05.2018. Appellant has challenged the judgment and decree before the First Appellate Court. First appeal filed by the appellant was dismissed by the Appellate Court and judgment and decree of the trial Court was affirmed. 5. Suit is filed maliciously to harass the defendants. 4. Learned trial Court allowed and decreed the suit vide its judgment and decree dated 03.05.2018. Appellant has challenged the judgment and decree before the First Appellate Court. First appeal filed by the appellant was dismissed by the Appellate Court and judgment and decree of the trial Court was affirmed. 5. Being aggrieved by decree dated 03.05.2019 appellant has filed the second appeal on the following substantial questions of law:-- (a) Whether verdict of both the Courts below is perverse in treating appellant as encroacher ? Appellant had relied on document Ex.D-3, Ex.D-5, Ex.D-6 and Ex.D- 8 to show that he was tenant of respondents. Said documents had not been believed by the trial Court as in said documents plaintiffs were not a signatory and further trial Court has also relied on the order passed by the Rent Controlling Authority which has become final. Plaintiffs and their witnesses namely PW-1 Sangeeta, PW-2 Rakesh Gupta, PW-3 Rakesh Jain and PW-4 Ajay Jain, has unequivocally stated that appellant was a trespasser. On basis of evidence available on record and also considering the order passed by the Rent Controlling Authority, trial Court has held that appellant was a trespasser. Similarly, appellate Court has also discussed the evidence available on record and held that appellant was trespasser. The finding of trial Court as well as appellate Court is not perverse and no substantial question of law number one arises in the second appeal. (b) Whether tenancy itself came to an end over rented property after family partition ? It has already been decided by the trial Court as well as appellate Court that appellant was not a tenant therefore this substantial question of law does not arise in second appeal. (c) Whether suit is not maintainable as suit is not valued properly as per market value of property and according to valuation list of Sub registrar Balaghat ? Learned trial Court as well as appellate Court had held that no evidence has been led by appellant to show that proper court fees has not been paid and house has not been properly valued as per market value of property. Trial Court as well as appellate Court has found that the condition of houses is in dilapidated condition. Learned trial Court as well as appellate Court had held that no evidence has been led by appellant to show that proper court fees has not been paid and house has not been properly valued as per market value of property. Trial Court as well as appellate Court has found that the condition of houses is in dilapidated condition. On basis of aforesaid findings of the trial court as well as appellate Court it cannot be said that the suit was not properly valued therefore, no such substantial question of law arises in the second appeal. (d) Whether Court had committed an error in passing judgment without deciding application under Order 41 Rule 27 of C.P.C. ? Learned appellate Court vide its judgment and decree dated 03.05.2019 has decided in application under Order 41 Rule 27. Appellant has incorrectly made pleading that application under Order 41 Rule 27 is not decided. This substantial question of law also does not arise in this appeal. (e) Whether suit is not maintainable in view of averment that defendantappellant is encroacher when plaintiff himself averred that respondent is tenant and in such a situation suit under MP Accommodation Control Act, 1961 is not maintainable? Plaintiffs had not filed a suit under MP Accommodation Control Act. Suit has been filed for eviction, possession and mesne profit therefore this substantial question of law also does not arise in this second appeal. (f) Whether finding of Rent Control Authority shall be considered in civil suit ? Civil Revision against the order of Rent Controlling Authority filed before High Court. The order of Rent Controlling Authority can be challenged before High Court in the present case, said order has not been challenged and therefore the finding of Rent Controlling Authority has become final and said finding can be relied upon by the civil court. 6. The proposed substantial question of law number 7 and 8 are in respect of tenancy. It has already been held by the trial Court as well as by the appellate Court that appellant was a trespasser therefore these questions do not arise in this appeal. 7. The last substantial question of law which has been raised is whether decree in respect of damages could not be passed as proper court fees has not been paid on relief of damages ? Claim of Rs. 7. The last substantial question of law which has been raised is whether decree in respect of damages could not be passed as proper court fees has not been paid on relief of damages ? Claim of Rs. 25/- per day as damages till realization is to be paid when final judgment and decree is passed and same cannot be paid at initial stage because the amount has not been crystallized. Therefore, there is no illegality or perversity in the order. 8. In view of aforesaid discussions, this second appeal filed by the appellant is dismissed .