JUDGMENT 1. This second appeal has been preferred by the original defendant-Pramod Singh (now dead, through LRs) challenging the judgment and decree dated 17.8.1998 passed by Fifth Additional District Judge, Rewa, in Regular Civil Appeal No.31-A/1998 affirming the judgment and decree dated 8.5.1995 passed by Third Civil Judge Class II, Rewa, in Civil Suit No.36-A/1988 whereby Courts below have concurrently decreed the suit for eviction of the rented shop on the ground of defaults in making payment of arrears of rent available on the ground under Section 12(1)(a) of the M.P. Accommodation Control Act, 1961 (in short ‘the Act’). 2. In short, the facts are that the respondent/plaintiff instituted a suit for eviction and arrears of rent with the allegations that the house in which shop is situated was owned by late Dal Pratap Singh. On the ground floor there were two shops in which Satyapal Chaddha and Ramgarib Mishra were tenants. After vacation of shop (consisting of three rooms) by Satyapal Chaddha, that was given by Dal Pratap Singh to the defendant Pramod Singh on 24.9.1978 on rent of Rs.150/- per month, who executed rent note in favour of Dal Pratap Singh, but the defendant never paid any rent to Dal Pratap Singh, resultantly a notice was issued on 24.4.1981 to the defendant but, he neither paid rent nor vacated the shop. It is also alleged that Dal Pratap Singh had executed a Will in favour of his wife Smt. Devas Kumari on 2.8.1980 and after death of Dal Pratap Singh on 19.6.1983, Smt. Devas Kumari became exclusive owner and thereafter she gifted the house to her younger son Pradeep Kumar, who was taking care of late Dal Pratap Singh and mother Devas Kumari, on that basis he became exclusive owner and accordingly his name was also mutated. Then he issued notices on 17.8.1987 and 3.11.1987 to the defendant for eviction and payment of arrears of rent, but he neither paid rent nor vacated the house and is trying to establish his ownership on the house. On inter alia allegations the suit was filed. 3. The defendant appeared and filed written statement denying the plaint averments and contended that he never paid rent to the plaintiff or his father late Dal Pratap Singh. On inter alia allegations the suit was filed. 3. The defendant appeared and filed written statement denying the plaint averments and contended that he never paid rent to the plaintiff or his father late Dal Pratap Singh. The plot over which the house is constructed, was acquired by his elder brother Ganesh Pratap Singh in the year 1957-1958 on lease of 99 years, which is joint family property of the parties. After vacation of the disputed shop by Satyapal Chaddha in the year 1978, a shop was opened in the month of July, 1978 in the name of Vindhya Agro Traders, which as a Karta was being run by father Dal Pratap Singh, and after his death Ganesh Pratap Singh became Karta of the family and no partition of the joint family property has taken place so far. It is alleged that Dal Pratap Singh was not exclusive owner of the suit house and as the Will was not legal, therefore, Smt. Devas Kumari did not get any right in the suit house and was not competent to gift the house to the plaintiff and as such he cannot evict the defendant. The rent note is a false and fabricated document got prepared on the letter pad of shop, just for filing the suit for eviction. Taking several other pleas, the suit was prayed to be dismissed. 4. Trial Court, on the basis of pleadings of the parties framed issues and recorded evidence of the parties and decreed the suit holding the relationship of landlord and tenant proved, in between the parties, vide judgment and decree dated 8.5.1995. Against which regular civil appeal was filed by the appellant/defendant, which was also dismissed by the impugned judgment and decree dated 17.8.1998. 5. Against the judgment and decree of eviction passed by Courts below, second appeal was preferred which was admitted for final hearing on 22.8.2007 on the following substantial questions of law :-- “(i) Whether the attestation of the Will Ex.P/51 has been proved from the statement of Pramod Kumar Sharma (PW2) in terms of Section 63(c) of the said Act ? (ii) If the Will Ex.P/51 is not found to be proved, whether defendant who is the son of Dal Pratap Singh and real brother of plaintiff would also become co-owner and ceases to be tenant ? (ii) If the Will Ex.P/51 is not found to be proved, whether defendant who is the son of Dal Pratap Singh and real brother of plaintiff would also become co-owner and ceases to be tenant ? (iii) Whether on its face value Ex.P/47, it can be inferred that the Rent Note has been duly executed between defendant and his father Dal Pratap Singh ?” 6. Learned counsel for the appellant submits that Dal Pratap Singh was not owner of the suit property because Patta (Ex.P/13) of plot (over which house is constructed) was granted on 6.12.1957 in favour of defendant’s elder brother Ganesh Pratap Singh. He submits that Courts below on surmises and conjectures, have recorded findings of exclusive ownership in favour of Dal Pratap Singh, which in absence of any documentary evidence are not sustainable. He submits that as Dal Pratap Singh was not exclusive owner of the suit property, therefore, he was not competent to execute Will dated 2.8.1980 (Ex.P/51) in favour of his wife Smt. Devas Kumari and resultantly the gift deed dtd. 21.3.1988 (Ex.P/48) executed by Smt. Devas Kumari in favour of the plaintiff does not confer any right on him. He submits that even otherwise the plaintiff has not proved execution of Will (Ex.P/51) because attesting witness Pramod Kumar Sharma has not been able to prove due execution and attestation of the Will. He further submits that the rent note (Ex.P/47) also has not been proved by the plaintiff. With these submissions, he prays for allowing the second appeal. 7. Learned counsel appearing for the respondent/plaintiff supports the judgment and decree passed by Courts below and prays for dismissal of the second appeal. He submits that Courts below have concurrently found that the suit property exclusively belonged to late Dal Pratap Singh, therefore, he rightly executed Will in favour of his wife Smt. Devas Kumari and accordingly Smt. Devas Kumari was competent to execute gift deed, on the basis of which the plaintiff succeeded the property and as such, there is no illegality in the judgment and decree passed by Courts below. In support of his submissions, he placed reliance on the decisions of Hon’ble Supreme Court in the case of Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh and others, (2009) 4 SCC 780 ; Keshar Bai v. Chhunulal, (2014) 11 SCC 438 ; as well as a coordinate bench decision of this Court in the case of Jhariyari and others v. Satya Narayan Kewat & others, 2015 (3) MPLJ 185 . With these submissions he prays for dismissal of the appeal. 8. Heard learned counsel for the parties and perused the record. 9. All the aforementioned three substantial questions of law are related to each other, in which the question of relationship of landlord and tenant is also covered, therefore, all the three questions are being decided together. It is also pertinent to mention here that the suit for eviction has been filed on the ground available under section 12(1)(a) of the Act, therefore, in the light of decision of Hon’ble Supreme Court in the case of Tribhuvanshankar v. Amrutlal, (2014) 2 SCC 788 (para 31) foremost question is about relationship of landlord and tenant between the parties to the suit. 10. Perusal of the judgment and decree passed by Courts below shows that the Courts below have upon surmises and conjectures recorded finding to the effect that the suit house was owned by late Dal Pratap Singh exclusively, whereas Patta (Ex.P/13) of the plot, over which the suit house is constructed, was granted on 6.12.1957 in favour of Ganesh Pratap Singh (elder brother of plaintiff & defendant). As to how, the property came in exclusive ownership of late Dal Pratap Singh (i.e. father of plaintiff, defendant and Ganesh Pratap), nothing has been placed on record and without making any discussion of the evidence available in that regard, Courts below have concluded that late Dal Pratap Singh was exclusive owner of the suit property, which otherwise was not possible in the present suit for eviction in the light of aforesaid decision in the case of Tribhuvanshankar (supra). 11. 11. Further the rent note (which is on a letter head of the shop) is a photocopy (Ex.P/47C), which is said to have been executed by defendant in favour of father Dal Pratap Singh does not appear to be a proven document because the plaintiff has not been able to prove the same in accordance with the provisions of section 47, 65 and 67 of the Evidence Act. Apparently, the plaintiff did not pray for secondary evidence, nor the Courts below have taken care of it and considered the photocopy of rent note as an evidence of relationship of landlord and tenant. Further, there is overwriting at some places in the rent note and has not been verified by anybody, which has been accepted by the plaintiff Pradeep Kumar Singh (PW-1) in para 21 of his testimony. 12. Secondly, as the father Dal Pratap Singh was not owner of the suit house, therefore, he was not competent to execute the Will in favour of his wife Smt. Devas Kumari. Even otherwise, testimony of attesting witness Pramod Kumar Sharma (PW-2) is not sufficient to prove valid attestation of Will as provided under section 63(c) of the Indian Succession Act and does not satisfy its requirements. In his statement he has not said anything that he saw the testator signing the Will. Consequently, gift deed said to be executed by Smt. Devas Kumari in favour of plaintiff, does not confer any right on the plaintiff. 13. The Courts below have only on the premise of alleged exclusive ownership of late Dal Pratap Singh and Smt. Devas Kumari concluded that the plaintiff is owner and landlord of the suit property and as the defendant has not paid any rent to the plaintiff, decreed the suit for eviction on the ground of defaults in making payment of arrears of rent, which otherwise could not have been passed on the basis of notices dtd. 17.8.1987 and 3.11.1987 issued to the defendant prior to acquisition of suit property by the plaintiff by way of gift deed dtd. 21.3.1988. 14. In view of aforesaid discussion and upon consideration of the entire material available on record, in my considered opinion, both the Courts below have committed illegality in decreeing the suit. 15. 17.8.1987 and 3.11.1987 issued to the defendant prior to acquisition of suit property by the plaintiff by way of gift deed dtd. 21.3.1988. 14. In view of aforesaid discussion and upon consideration of the entire material available on record, in my considered opinion, both the Courts below have committed illegality in decreeing the suit. 15. In the light of factual scenario of the instant case, the decisions relied upon by learned Counsel for the defendant are distinguishable on facts and do not provide any help to the plaintiff. 16. Resultantly, all the three substantial questions of law are decided in favour of the appellant/defendant and against the respondent/plaintiff. 17. Resultantly, second appeal succeeds and is hereby allowed and suit filed by the respondent/plaintiff stands dismissed. 18. Misc. application(s), pending if any, shall stand closed.