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Madhya Pradesh High Court · body

2022 DIGILAW 73 (MP)

Sanjeev Alias Kailash v. Shyam Manohar

2022-01-11

SANJAY DWIVEDI

body2022
JUDGMENT 1. This appeal has been filed under Section 100 of the Code of Civil Procedure by the appellant/defendant against the judgment and decree dated 14.08.2006 passed in Civil Appeal No. 32-A/2006 arising out of the judgment and decree dated 24.12.2003 passed in Civil Suit No. 21-A/1997 whereby the appellate court has set aside the judgment and decree granted under Section 12(1)(a) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as 'the Act of 1961'), but, decreed the suit on the ground of Section 12(1)(c) of the Act of 1961. 2. The facts in brief are that the respondent No.1/Plaintiff filed a suit against the appellant/defendant and also against respondent Nos. 2 and 3 seeking decree of ejectment on the grounds that they were his tenants and not paid rent since October, 1994 and, therefore, they were in arrears of rent since October, 1994 to 1997 and further that they illegally constructed the toilet without consent of the respondent/plaintiff. The suit was registered as Civil Suit No. 21-A/1997 in the Court of Civil Judge Class II Seoni Malwa. 3. The plaintiff claimed himself to be the landlord of the house No. 4 situated at Ward No. 8, Seoni Malwa in which father of the appellant namely Mangilal used to reside as a tenant for last more than 20 years on a rent of Rs. 50/- per month. Mangilal died in 1994 and after his death, appellant and respondent Nos. 2 and 3 became the tenant of the said house in question. 4. Written statement was filed by the appellant/defendant disputing the title of the plaintiff over the house in question and claiming that earlier one Smt. Leela Bai also claimed ownership over the said house and gave notice to the father of the appellant on 02.06.1972, but, his father refused to pay rent to Smt. Leela Bai and thereafter she did not file any suit and not initiated any further proceeding against the father of the appellant or against other defendants and as such they claimed that they acquired the title in respect of the suit house by virtue of adverse possession and, therefore, the suit filed by the plaintiff was barred by limitation. 5. The trial court, after recording evidence of the parties, decreed the suit on 24.12.2003 on the ground of arrears of rent of Rs. 1500/-. 6. 5. The trial court, after recording evidence of the parties, decreed the suit on 24.12.2003 on the ground of arrears of rent of Rs. 1500/-. 6. The appeal was preferred by the appellant against the said judgment and decree and also deposited the arrears of rent. During the pendency of appeal, the appellant filed applications under Order 41 Rule 27 of CPC for taking additional documents on record, under Order 41 Rule 25 of CPC read with Section 151 of CPC for framing of additional issues, under Order 1 Rule 10 of CPC and under Order 41 Rule 20 of CPC saying that Smt. Saroj Bai is the daughter of original tenant Mangilal and, therefore, she is also a necessary party. The appellant also filed an application under Section 35 of the Stamp Act on the ground that the document i.e. sale deed, on the basis of which the respondent No. 1 is claiming ownership over the suits house, was not a registered document, therefore, as per the provisions of the Act the said document be impounded. 7. The appellate court, while deciding the appeal, considered all the IAs and decided the same. The appellate court finally allowed the appeal in part setting aside the judgment and decree passed on the ground of Section 12(1)(a) of the Act of 1961, but decreed the suit granting decree of Section 12(1)(c) of the Act of 1961 directing ejectment of the appellant/defendant from the suit house and denied his title as he failed to prove that the plaintiff was not the owner and landlord of the suit house. 8. The second appeal has been preferred by the appellant and the same has been admitted by the High Court on the following substantial question of law: 'Whether without establishing the relationship of landlord and tenant, the decree under Section 12(1)(c) of the M.P. Accommodation Control Act, 1961 can be granted?' Learned counsel for the appellant argued the appeal, raised several grounds and also submitted that the substantial question of law was not properly framed. In view of the submission made by the learned counsel for the parties and the material available on record, the substantial question of law, which is required to be framed and answered here would be: 'Whether the judgment and decree passed on the ground of Section 12(1)(c) of the Act of 1061 is perverse or the Appellant Court has not properly appreciated the stand taken by the defendant disputing the landlordship and ownership over the suit premises of the plaintiff and as such finding given by the Appellate Court is perverse?' 9. Learned counsel for the appellant has submitted that the Appellate Court has committed illegality while rejecting the application filed under Order 41 Rule 27 of CPC and not taking document on record, which was a document of title, only on the ground that the said document was not a registered document, therefore, it was not admissible in evidence, however, as per the learned counsel for the appellant the said document can be used for collateral purpose and can be taken as an evidence just to prove that the defendants were in possession of the suit house not as tenants but as owners of the suit house. Learned counsel for the appellant, in support of his contention, has placed reliance upon a decision of Supreme Court reported in (2010) 5 SCC 401 -S Kaladevi vs. V.R. Somasundaram and others in which the Supreme Court has observed that unregistered sale deed tendered not as evidence of completed sale but as proof of oral agreement of sale, can be received in evidence by making endorsement that it was received only as evidence of oral agreement of sale. He has submitted that if the said document had been taken on record or taken as evidence, the situation would have been different. 10. Learned counsel for the appellant has further submitted that both the courts below have relied upon a document Ex.P/1 i.e. document of Municipal Council, which was only a sheet of assessment of property tax in which it is shown that the plaintiff was the owner and Mangilal, father of the present appellant/defendant, was the tenant in the suit premises. 10. Learned counsel for the appellant has further submitted that both the courts below have relied upon a document Ex.P/1 i.e. document of Municipal Council, which was only a sheet of assessment of property tax in which it is shown that the plaintiff was the owner and Mangilal, father of the present appellant/defendant, was the tenant in the suit premises. He has submitted that the said document is not the document of title and from the said document itself it is clear that there were several corrections made from time to time showing other persons to be the owners of the suit house and as such relying upon the said document treating plaintiff to be the landlord is not proper. He has further urged that application under Order 1 Rule 10 of CPC was filed by one Saroj Bai claiming herself to be a necessary party as the suit property was her parental property and she was also a share holder in the same and, therefore, without making her to be a party, the suit was not maintainable. To substantiate his contention, learned counsel for the appellant has placed reliance in the case of (2006) 2 SCC 724 -Mohinder Prasad Jain vs. Manohar Lal Jain in which it has been held that without prior consent of other co-owners suit for eviction against tenant by one of the co-owner is not maintainable. He has submitted that it clearly indicates that the suit was not maintainable only on behalf of one co-owner because the other co-owners had not given their prior consent. However, the application submitted by Saroj Bai under Order 1 Rule 10 of CPC was not filed claiming herself to be a co-owner of the property, yet another application was filed by the appellant/defendant under Order 1 Rule 10 of CPC saying that earlier one Leelabai issued notice claiming herself to be the landlord of the suit property and the said notice was replied by the original tenant Mangilal and also denied the ownership of Leela Bai. According to the appellant/defendant, it can be gathered that there was dispute between co-owners in respect of the title over the suit property and if only one co- owner files a suit for eviction against the tenant, the said suit is not maintainable. 11. According to the appellant/defendant, it can be gathered that there was dispute between co-owners in respect of the title over the suit property and if only one co- owner files a suit for eviction against the tenant, the said suit is not maintainable. 11. Learned counsel for the appellant has submitted that it is not a case in which defendants have denied the title of the plaintiff without any foundation, but, they have some basis and documents showing that the suit house was purchased by Mangilal by virtue of an agreement to sale, although the said sale deed could not be executed, but, later on they used to reside in the suit premises as owners and, therefore, the plaintiff could not produce any rent receipt or any document showing that at any point of time rent was paid by the defendant to the plaintiff. Learned counsel has submitted that both the courts below have failed to appreciate the fact that in absence of any document of title in favour of plaintiff and not proving his case to be the owner of the property, when his ownership has been seriously disputed, the decree on the ground of Section 12(1)(c) of the Act of 1961 cannot be passed. 12. Per contra, learned counsel for the respondent/plaintiff has opposed the submission made by the learned counsel for the appellant and submitted that the present case is a case of concurrent finding of fact as both the courts below on the basis of evidence adduced by the parties found the plaintiff to be the landlord and owner of the suit property and rightly passed the decree on the ground of Section 12(1)(c) and, therefore, as per the settled position of law, in a second appeal, the High Court exercising jurisdiction under Section 100 of CPC cannot interfere in the concurrent finding of fact, unless it is proved to be perverse. He has submitted that finding of both the courts below holding plaintiff to be the landlord and owner of the property even by erroneous finding cannot be disturbed by the High Court in second appeal and, therefore, the appeal does not involve any substantial question of law and the question of law on the basis of which the appeal is being heard and decided does not give this Court any right to interfere in the concurrent finding of fact given by both the courts below. Learned counsel has relied upon the statement of witnesses recorded during the course of trial and submitted that the said witnesses have very categorically stated before the trial court that they have seen the defendant paying rent to the plaintiff. He has submitted that the evidence of the witnesses of the plaintiff has not been properly rebutted by the defendant and, therefore, the finding holding the plaintiff to be the landlord cannot be said to be a perverse finding and, therefore, the same cannot be interfered with. 13. I have heard the rival contention of the learned counsel for both the parties and perused the record. So far as the submission made by the learned counsel for the appellant that the document, which was said to be a document of title made in favour of the defendant and the observation made by the appellate court while rejecting the application filed under Order 41 Rule 27 of CPC is concerned, the said document is an agreement dated 13.10.1968 written by one Kamlabai in favour of the father of the appellant/defendant Mangilal, but, this document is not a sale deed and is not a registered document, therefore, the court has not taken note of the said document and rejected the said application. If the statement of defendant Kailash-DW-1 is seen, it clearly reveals that he did not disclosed about the document executed somewhere in the year 1968 even to his counsel before filing the written statement and he has also stated that during the course of recording his statement, first time he disclosed the said fact to the court. His statement was recorded on 23.06.2003. His statement was recorded on 23.06.2003. It clearly indicates that even after knowing about the fact that his father purchased the suit house in the year 1968 from Kamlabai he did not disclose the said fact while contesting the suit of eviction and also did not disclose the said fact even to his counsel, which makes the said document, which is an Ikrarnama of 1968, suspicious. In his statement, this witness has also stated that he did not pay the tax of the suit house, which makes it clear that he was not residing in the suit house as an owner of the suit house otherwise he might be paying the tax of the suit house or might be knowing who was paying the tax on his behalf. On the contrary, if the statement of plaintiff's witnesses namely Umesh Narayan-PW-7 is seen, he has very categorically stated in the court that father of the defendant used to pay rent of the suit house and he had seen Mangilal paying rent to the plaintiff and the said witness has stated that after 1980 he left the said area and started living in some other area. 14. Learned counsel for the respondent has submitted that the statement of the plaintiff's witness has not been rebutted even in cross-examination and even no question has been asked in the cross-examination that the said witness was saying lie and or not seen Mangilal paying rent to plaintiff. He has further submitted that PW-5-Shantibai Yadav has also stated in her statement that Mangilal used to pay rent to the mother of the plaintiff and was residing in the suit house as a tenant. She has also stated that she was informed by the family members of the plaintiff that Mangilal was their tenant. 15. Considering the statements of the witnesses and the fact that the documents on which both the courts below have placed reliance, the defendant has not placed any material or even has not cared to call the officers of the Municipal Council to substantiate as to on what basis the entries were made in the property assessment register. Thus, it is clear that the finding of both the courts below in respect of the ownership of the plaintiff is a finding of fact. Thus, it is clear that the finding of both the courts below in respect of the ownership of the plaintiff is a finding of fact. There is sufficient material available on record orally or documentary to draw a conclusion that the plaintiff was the landlord and owner of the suit house and as such the said finding is not perverse, although learned counsel for the respondent has rightly submitted that the appellant at the most can say that the finding is erroneous, but, that is not enough for appellant the to convince the Court for setting aside the said finding exercising jurisdiction under Section 100 of CPC. So far as application submitted under Order 1 Rule 10 CPC is concerned, none of the co-owners or family members of plaintiff side has moved any such application indicating that no prior consent was taken from them for filing a suit against the defendant, but, one application under Order 1 Rule 10 of CPC was filed by the daughter of Mangilal, sister of present defendant, and another application was by the defendant saying that since Leelabai had earlier issued notice to Mangilal and, therefore, it indicates that there were some dispute with regard to ownership over the suit house among co-owners, however, this is not enough to infer that there was some dispute between the co-owners and no prior consent from the co-owners was taken by the plaintiff before filing the suit. Unless any co-owner comes forward and objects about filing the suit on the ground that the same has been filed without their prior consent, this Court, at the stage of second appeal, cannot say that the suit is not maintainable on such ground. Accordingly, the plea raised by the learned counsel for the appellant is without any substance and, therefore, the same is rejected. 16. In view of the discussion made hereinabove, this Court is of the opinion that in view of the settled principle of law since it is a concurrent finding of fact that the plaintiff is the owner and landlord of the suit premises and the defendant without any foundation and bona-fide reason disputed his landlordship and ownership, therefore, the decree under Section 12(1)(c) of the Act of 1961 has rightly been passed by the courts below. The substantial question of law on which this appeal was admitted is accordingly answered. 17. The substantial question of law on which this appeal was admitted is accordingly answered. 17. Even otherwise Considering the above, since the findings given by both the Courts below are concurrent findings of facts and during the course of arguments, the learned counsel for the appellant has failed to establish any perversity in the judgment and decree passed by both the Courts below and considering the law laid down by the Supreme Court consistently holding that the jurisdiction of this Court to interfere with the finding of fact under Section 100 of the Code of Civil Procedure is very limited until the finding is either perverse or based on no evidence, this Court cannot interfere with the concurrent finding of fact. [See: Prakash Kumar v. State of Gujrat- (2004) 5 SCC 140 , Thiagarajan v. Sri Venugopalaswamy B. Koil- (2004) 5 SCC 762 , Harjeet Singh and another vs. Amrik Singh and another- (2005) 12 SCC 270 , Sugani (mst.) v. Rameshwar Das- (2006) 11 SCC 587 , Gurdev Kaur vs. Kaki (2007) 1 SCC 546 , Narayanan Rajendran v. Lekshmy Sarojini (2009) 5 SCC 264 , Gurvachan Kaur and others vs. Salikram (Dead) Through Lrs.- (2010) 15 SCC 530 , Damodar Lal vs. Sohan Devi and others- (2016) 3 SCC 78 and State of Madhya Pradesh vs. Sabal Singh (Dead) by legal representatives and others- (2019) 10 SCC 595 and the judgment passed by the Gwalior Bench of this Court on 26.03.2019 in Second Appeal No. 1899/2017-Dr. Manikant Shah vs.Smt.Pushpa Devi]. 18. In view of the above, the appeal is without any substance and is hereby dismissed.