Madhya Pradesh High Court
Smt. Khairunnisha vs Smt. Shaheda Parveen on 4 December, 2023
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1 S.A. NO.1235/2010
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
SECOND APPEAL No.1235 OF 2010
Between:-
1. SMT. KHAIRUNNISHA, AGED ABOUT 57
YEARS, WIFE OF LATE MOHAMMED ISHAQ
2. MOHAMMED IDRISH, AGED ABOUT 37
YEARS, SON OF THE LATE MOHAMMED
ISHAQ
3. MOHAMMED EZAZ, AGED ABOUT 32 YEARS,
SON OF THE LATE MOHAMMED ISHAQ,
4. MOHAMMED AZHAR, AGED ABOUT 35
YEARS, SON OF THE LATE MOHAMMED
ISHAQ
5. MOHAMMED ARIF, AGED ABOUT 31 YEARS,
SON OF THE LATE MOHAMMED ISHAQ
6. MOHAMMED IMRAN, AGED ABOUT 27
YEARS, SON OF THE LATE MOHAMMED
ISHAQ
7. MOHAMMED SHAHRUKH, AGED ABOUT 16
YEARS, SON OF THE LATE MOHAMMED
ISHAQ, MINOR, THROUGH NEXT FRIEND
SMT. KHAIRUNNISHA, MOTHER
ALL RESIDENTS OF MAHARANI LAXMI BAI
WARD, AGARKAR MARG, HATAMPURA,
KHANDWA (M.P.)
.....APPELLANTS
(SHRI IMTIAZ HUSSAIN SR. ADVOCATE WITH
SHRI MOHD. SAJID KHAN, ADVOCATE)
AND
1. SMT. SHAHEDA PARVEEN, AGED ABOUT 48
2 S.A. NO.1235/2010
YEARS, WIFE OF RASEED KHAN,
2. RASEED KHAN, AGED ABOUT 52 YEARS, SON
OF MAJEED KHAN
BOTH RESIDENTS OF NEAR APNA STUDIO,
KHADAKPURA, KHANDWA (M.P.)
3. SMT. KAMARJAHAN, WIDOW OF ARIF
MOHAMMED (SINCE DECEASED), THROUGH
LEGAL REPRESENTATIVES:
3(A). SHAMEED ZAIDI, WIFE OF NUSL HASAN
ZAIDI, RESIDENT OF CIVIL LINES,
MAHIDPUR, DISTRICT UJJAIN (M.P.)
3(B). NASEEM ZAIDI, WIFE OF DABEEL HASAN
ZAIDI, RESIDENT OF CIVIL LINES,
MAHIDPUR, DISTRICT UJJAIN (M.P.)
3(C). NAUSAD QURESHI, WIDOW OF NASEER
QURESHI, RESIDENT OF NEAR NAVCHANDI
MANDIR, KHANDWA, DISTRICT KHANDWA
(M.P.)
3(D). SHARWAT KHAN, WIFE OF ABDUL WAHEED
KHAN, RESIDENT OF M.P.E.B. COMPLEX,
INDORE, TAHSIL AND DISTRICT INDORE (M.P)
3(E). JINAT BI, WIFE OF HASIBUDDIN ANJUM
KHAN, RESIDENT OF KHAMGAON
(MAHARASHTRA)
4. ASLAM MOHAMMED, AGED ABOUT 52 YEARS,
SON OF ARIF MOHAMMED, RESIDENT OF 68,
HATAMPURA, KHANDWA (M.P.)
.....RESPONDENTS
(BY SHRI ASHISH SHARMA AND SHRI
SHAILENDRA VERMA, ADVOCATES FOR
RESPONDENTS)
....................................................................................................................
Reserved on : 01/11/2023
Pronounced on: 04/12/2023
.....................................................................................................................
3 S.A. NO.1235/2010
This second appeal has been heard and reserved for judgment,
coming on for pronoucement this day, the Court passed the following:
JUDGMENT
This second appeal has been preferred by plaintiffs challenging judgment & decree dtd. 29.09.2010 passed by 1st Additional District Judge, East Nimad, Khandwa in regular Civil Appeal No.79A/09 affirming judgment & decree dtd. 31.03.2009 passed by 2 nd Civil Judge Class-I, Khandwa in Civil Suit No.35-A/2006 whereby trial Court dismissed plaintiffs/appellants' suit filed for declaration of title and permanent injunction based on adverse possession and while allowing defendants 1-2's counter claim, passed decree of eviction on the grounds under Section 12(1)(a) & (c) of the M.P. Accommodation Control Act, 1961 (in short 'the Act') and on civil appeal filed by plaintiffs, first appellate Court affirmed judgment & decree passed by trial Court and also dismissed cross objection filed by defendants 1-2 (Smt. Shaheda Parveen and Rashid Khan) in respect of grounds of eviction under Section 12(1)(e) & (g) of the Act.
2. Facts in short are that plaintiffs (Smt. Khairunnisha and 6 others) instituted a suit for declaration of title and permanent injunction claiming themselves to be owner and in possession on the basis of adverse possession with the averments that grandfather-in-law of plaintiff 1 and grandfather of plaintiffs 2-7 namely Sheikh Kareem, 80-90 years ago constructed house in question, owner of which was Malgujar Rao Bahadur Govindrao Mandloi but he never objected to it. It is alleged that after death of Sheikh Kareem his legal heirs (i.e. plaintiffs) are in possession and have acquired title on the basis of adverse possession. In the year about 1942 suit property along with other land was given on 4 S.A. NO.1235/2010 patta by Moreshwar Rao Mandloi and his mother Smt. Kunwarbai to Maqsood Mohd. s/o Faij Mohd. but despite denying their title by plaintiffs, they also did not take any action. With these allegations the suit was filed.
3. Upon service of summons, defendants 1-2 and defendants 3-4 appeared and filed two sets of written statement(s) denying plaint averments with prayer of dismissal of suit. Admitting ownership of Malgujar Rao Bahadur Govindrao Mandloi as well as grant of lease to Maqsood Mohd. s/o Faij Mohd., it is contended that after expiry of lease on 12.12.1972, property was sold to Arif Mohd. Qureshi (husband & father of defendants 3-4 namely Kamar Jahan and Aslam Mohd.) vide registered sale deed dtd. 13.12.1972 (Ex.D/27-c), who died, therefore, defendants 3-4 became owner. Out of purchased property, defendants 3-4 sold an area 760 sq.ft. to one tenant namely Altaf Hussain vide regd. sale deed dtd. 27.12.2002, hence plaintiffs are tenants of disputed portion and have without any right are trying to challenge sale deed dtd. 02.08.2004 (Ex.D/9-c) executed by defendants 3-4 in favour of defendants 1-2 (Smt. Shaheda Parveen and Rashid Khan), whose names have also been mutated vide order dtd. 10.01.2006.
4. Along with written statement counter claim was also filed by defendants 1-2 alleging plaintiffs to be tenant on rent of 300/- p.m. in suit accommodation over an area 18x25 sq.ft. and prayed for decree of eviction on grounds under Section 12(1)(a),(c),(e) & (g) of the Act. It is contended that plaintiffs despite making several demands did not pay rent of the accommodation for the period from 01.08.2004 to 31.01.2006 and have denied title of defendants 1-2 in reply of notice issued to plaintiffs on 19.12.2005. It is also contended that defendants 1-2 are in need of the accommodation for their residence and for repairing and 5 S.A. NO.1235/2010 additional/alteration of house, therefore, accommodation is needed by them. On inter alia allegations, counter claim was filed seeking decree of eviction on said grounds.
5. On the basis of pleadings of the parties, learned trial Court framed as many as 9 issues and recorded evidence of parties. In support of their case, plaintiffs examined Mohd. Azhar (PW1) and submitted documentary evidence (Ex.P/1 to P/4). Similarly, defendants examined Rashid Khan (DW1) & Aslam Mohd. (DW2) and produced documentary evidence (Ex.D/1 to D/34).
6. After hearing parties, trial Court vide its judgment & decree dtd. 31.03.2009, dismissed suit by holding that although plaintiffs are in possession of suit property but have not acquired title by adverse possession and by deciding issue no.3 held that infact plaintiffs are tenant of defendants 1-2 on rent of Rs.300/- p.m. and have not paid rent despite service of demand notice and have also denied title of defendants 1-2. With these findings trial Court passed decree of eviction on grounds under Section 12(1)(a) & (c) of the Act and refused to pass decree on grounds under Section 12(1)(e) & (g) of the Act.
7. Against judgment and decree of eviction dtd. 31.03.2009, plaintiffs preferred civil appeal and defendants 1-2 also preferred cross objection in respect of refusal of decree on grounds under Section 12(1)(e) & (g) of the Act. After hearing the parties, first appellate Court although reversed finding about rate of rent and held it to be Rs.100/- p.m. instead of Rs.300/- p.m. but affirmed judgment & decree of eviction passed by trial Court by dismissing plaintiffs' civil appeal as well as cross objection of defendants 1-2 vide judgment & decree dtd. 29.09.2010.
6 S.A. NO.1235/20108. Against aforesaid concurrent judgment & decree passed by courts below, plaintiffs/appellants preferred second appeal which was admitted on 02.02.2016 for final hearing on following substantial questions of law:-
"(1) Whether in view of the fact that counter claim of the defendant No.1 and 2 pleading that the monthly rent of the suit property was Rs.300/- and in view of the fact that the Appellate Court has held the same to be Rs.100/- per month, a decree under Section 12(1)(a) of the M.P. Accommodation Control Act could legally have been passed in favour of the defendants No.1 and 2 ?
(2) Whether denial of derivative title in the defendants No.1 and 2 could legally have resulted into a decree under Section 12(1)(c) and the same is against the settled law on the point ?"
9. Upon coming of second appeal for final hearing, this Court vide order dtd.12.10.2023 also framed one more substantial question of law as under:-
"(3) Whether on the basis of material available on record, learned Courts below were justified in holding that the plaintiff(s) is/(are) tenant in the suit accommodation on behalf of the defendant(s)/respondent(s) 1(-2) ?"
10. Learned counsel for appellants/plaintiffs submits that although plaintiffs have not been found to have acquired title on basis of adverse possession, but Courts below have committed grave illegality in holding plaintiffs to be tenant of defendants 1-2, whereas no documentary evidence is available on record showing relationship of landlord and tenant in between the parties. He further submits that while deciding issue no. 3 Courts below have also not cared to consider oral evidence adduced by defendants 1-2, especially following statement of defendant 2-Rashid Khan (DW1) (para 21 & 22) :
7 S.A. NO.1235/2010^^21@ eSaus vius odhy lkgc dks tcko nkok vkSj izfrnkok r;kj djokrs le; ;g tkudkjh ns nh Fkh fd eks0 vlye us eq>s crk;k gS fd og dPph jlhn nsrs Fks ysfdu esjs tcko nkos esa vkSj izfrnkos esa odhy lkgc us ;g ckr ugha fy[kh gSA ;g dguk xyr gS fd dPph jlhn okyh ckr eSa vius eu ls vlR; crk jgk gawA oknhx.k vkfjQ eks0 ds 300@:i;s izfrekg dh nj ls fdjk;snkj gksus dh ckr eSaus crkbZ gS ml laca/k esa esjs ikl dksbZ nLrkost ugha gSA fQj lk{kh dk dguk gS fd vkfjQ eks0 ds le; dh ckr ugha crk jgk gaw eSa vlye ds le; dh ckr crk jgk gawA ;g dguk lgh gS fd esjs 'kiFk i=h; lk{; esa oknhx.k dk 300@& :i;s izfrekg dh nj ls vkfjQ eks0 dk fdjk;snkj gksus okyh ckr eSaus fy[kkb gS ijarq bldk dksb nLrkosth izek.k ugha gSA 22@ vkfjQ eks0 dh e`R;q ds ckn oknhx.k dej tgka vkSj vlye [kka ds fdjk;snkj jgs bldk Hkh esjs ikl dksbZ nLrkosth izek.k ugha gSA nkfo;k edku esjs } kjk Ø; fd;s tkusds i'pkr oknhx.k us dHkh Hkh Lo;a dks esjk fdjk;snkj gksuk Lohdkj ugha fd;k gS ;g ckr lgh gSA oknhx.k }kjk eq>s dHkh Hkh dksbZ fdjk;k ugha vnk fd;k x;k gS ;g ckr Hkh lgh gSA ;g ckr lgh gS fd esjs }kjk fn;s x;s uksfVl dk tcko iz-ih-&2 oknhx.k }kjk fn;k x;k FkA ;g ckr Hkh lgh gS fd mDr tcko esa Hkh oknhx.k us fdjk;snkj gksus ls bUdkj fd;k gS vkSj Lo;a dks ekfyd gksuk n'kkZ;k gSA** and following statement of defendant 4-Aslam Mohd. (DW2) (para 24 &
32), who is predecessor-in-title of defendants 1-2 :
^^24@ nkfo;k [kksyh esa oknhx.k ds igys dkSu jgrk Fkk ugha irkA Lor% dgk fd tc esjs firk us eksjs'ojjko ls jftLVªh djok;h Fkh ml le; ls [kS:fu'kk gh jgrh vk jgh gSA eq>s ugha irk fd esjs firk us mDr [kksyh [kjhnh mls igys ls gh [ks:fu'kk bl [kksyh esa fdjk;snkj FkhA eq>s ;g Hkh ugh ekywe fd foØ; fd;s tkus ds igys ls gh bl edku esa fuokl djrh vk jgh FkhA eq>s ugha irk fd [ks:fu'kk dks edku fdlus jgus ds fy, fn;kA eq>s ugha irk fd [ks:fu'kk dks fdjk;snkj fdlus fdrus :i;s ls j[kk FkkA Lor% dgk fd orZeku fLFkfr ekywe gSA [ks:fu'kk nkfo;k edku esa esjs firk dh fdjk;snkj jgh gS bl laca/k esa dksbZ nLrkosth izek.k ugha gSA [ks:fu'kk us dHkh Hkh esjs firk dks fdjk;k vnk fd;k gks ,slk dksb nLrkost Hkh esjs ikl ugha gSA ;g lgh gS fd [ks:fu'kk Hkh esjh fdjk;snkj jgh ,slk Hkh dksbZ 8 S.A. NO.1235/2010 nLrkosth izek.k esjs ikl ugha gSA ;g Hkh lgh gS fd [ks:fu'kk }kjk dHkh eq>s dksbZ fdjk;k vnk fd;k x;k gks ,slh nLrkosth izek.k ugha gSA xokg us Lor% dgk fd ge mls dPph jlhn fdjk;k vnk djus dh nsrs FksA fdjk;k dk fglkc fdrkc esa j[krk FkkA ;g lgh gS fd tokc nkos esa dPph jlhn oknhx.k dks nsus okyh ckr ugha fy[kk;hA Lor% dgk fd vko';drk ugha le>hA** ^^32@ iz-Mh&1 lwpuki=] iz-Mh&3 fcy ,oa iz-Mh&2 fo'ks"k lwpuki= oknhx.k [ks:fu'kk dks fdjk;snkj ugha n'kkZ;k gS] ;g ckr lgh gSA Lor% dFku gS fd mlds ifr oknh eks- b'kkd dks fdjk;snkj n'kkZ;k gS tks [ks:fu'kk ds ifr FksA ;g lgh gS fd eks- b'kkd] esjs firk ;k esjk dHkh fdjk;snkj jgk gS] bl laca/k esa nLrkosth lk{; ugha gSA ;g Hkh lgh gS fd eks- b'kkd }kjk eq>s ;k esjs firk dks fdjk;k vnk fd;k x;k bl laca/k esa Hkh dksbZ nLrkosth izek.k ugha gSA** He submits that non consideration of said oral testimony has vitiated impugned judgment and decree passed by Courts below. In addition, learned counsel submits that plaintiffs have legal right to challenge derivative title of defendants 1-2 and after recording finding by first appellate Court about rate of rent to be Rs. 100/- p.m., no decree of eviction could have been passed on any of the grounds. In support of his submissions, he placed reliance on decisions of Supreme Court in case of Sheela and others vs. Firm Prahlad Rai Prem Prakash (2002) 3 SCC 375; Madhukar Nivrutti Jagtap and Others vs. Pramilabai Chandulal Parandekar (dead) Through Legal Representatives and Others 2020 (15) SCC 731; and Nazir Mohamed vs. J. Kamala and Others AIR 2020 SC 4321 and prays for allowing second appeal.
11. Learned counsel appearing for respondents submits that Courts below have concurrently found that there is relationship of landlord and tenant amongst plaintiffs and defendants 1-2, which being a pure finding of fact, is not liable to be interfered with, in the limited scope of Section 100 CPC. He submits that re-appreciation of oral evidence is not 9 S.A. NO.1235/2010 permissible in second appeal. He submits that although there is no documentary evidence available on record in support of relationship of landlord and tenant but there is cogent/unrebutted evidence available on record in respect of proof of relationship of landlord and tenant, which has rightly been considered by Courts below. With these submissions he prays for dismissing the second appeal.
12. Heard learned counsel for the parties and perused the record.
Substantial question of law no.3:
13. In the present case ownership of property in question with Rao Bahadur Govindrao Mandloi is not in dispute because plaintiffs have come with case that land/property in question belonged to Rao Bahadur Govindrao Mandloi and defendants 1-2 have shown themselves to be owner on basis of registered sale deed dtd. 02.08.2004 (Ex.D/9-c) executed by defendants 3-4 Kamarjahan & Aslam Mohd. (wife and son of Arif Mohd.) and for proving title of predecessor i.e. of Arif Mohd., another sale deed dtd.13.12.1972 (Ex.D/27-c) has been placed on record by defendants 1-2, which has been executed by Moreshwar Rao Mandloi s/o Rao Bahadur Govindrao Mandloi in favour of Arif Mohd. Qureshi. So, the title over suit property in ancient time was of Rao Bahadur Govindrao Mandloi. As such, both plaintiffs and defendants admit ownership of Rao Bahadur Govindrao Mandloi, therefore, in the present case only question is of capacity in which plaintiffs possess the suit property.
14. Both Courts below have concurrently held that plaintiffs have not acquired title over property in question by way of adverse possession and this Court has not formulated any substantial question of law in that regard, therefore, finding on question of adverse possession recorded by 10 S.A. NO.1235/2010 Courts below being a pure finding of fact, is not liable to be interfered with in limited scope of Section 100 CPC.
15. So far as requirement to prove relationship of landlord and tenant is concerned, Supreme Court in case of Tribhuvanshankar vs. Amrutlal 2014 (2) SCC 788 (para 31) has held that the suit on grounds available under Special Act can be decreed only upon establishment of relationship of landlord and tenant. It is also held that if relationship of landlord and tenant is not established on record, then merely on basis of proof of ownership, decree of eviction cannot be passed.
16. In the present case, no documentary evidence is available on record to prove relationship of landlord and tenant among the parties. Aforesaid oral testimony of defendants 2 and 4, (DW1) & (DW2) respectively, depicts that defendants 1-2, who claim themselves to be owner of suit property are not sure about status of plaintiffs to be that of tenant. No sufficient detail has been given about relationship of landlord and tenant either in pleadings or in evidence.
17. With a view to hold plaintiffs to be tenant in the accommodation, Courts below have placed entire burden on plaintiffs/alleged tenants to prove relationship of landlord and tenant and relied upon documentary evidence viz. Notices, Bill, Application, House Tax Register (Ex.D/1, D/2, D/3, D/23, D/24 & D/26) maintained or issued by Municipality, Khandwa,, Agreement by Shakeel in favour of Rashid Khan (Ex.D/14), Sale deed (Ex.D/33), but in these documents even name of any of the plaintiffs, is not there in any capacity.
18. Courts below have also observed that in the notice issued by Municipality there is name of Mohd. Ishaq and plaintiffs have received possession from Mohd. Ishaq, but nothing is available on record to 11 S.A. NO.1235/2010 suggest that plaintiffs have received possession from Mohd. Isaq. Even otherwise, merely on basis of issuance of notice by Municipality mentioning name of Mohd. Isaq, it cannot be said that there is relationship of landlord and tenant in between plaintiffs and defendants 1- 2, especially in presence of aforesaid oral testimony of defendants themselves.
19. Even if entire oral evidence of defendants is taken into consideration, then there is no iota of evidence to suggest that plaintiffs have been tenant of the defendants in suit accommodation and it appears that Courts below having impressed with the fact that defendants 1-2 are owner of property and plaintiffs have failed to prove their title over suit property, passed decree of eviction against plaintiffs by allowing counter claim, which is not intention of the law. It is well settled that decree of eviction under the Special Act can be passed only upon establishment of relationship of landlord and tenant and in absence of which, question of eviction on one or more grounds, does not arise.
20. Bare perusal of impugned judgment and decree passed by Courts below shows that for the reasons best known to them, they have not considered aforesaid oral testimony of defendants. It is well settled that non consideration of cogent admissible evidence/admissions vitiates judgment and decree.
21. As such by deciding substantial question of law no. 3 in favour of plaintiffs/appellants and against the defendants 1-2/respondents 1-2, it is held that both Courts below were not justified in holding plaintiffs to be tenants of defendants 1-2.
Substantial question of law no. 1 & 2:
12 S.A. NO.1235/201022. Although in view of decision on substantial question of law no. 3, there is no need to decide substantial question of law no. 1 & 2 and if defendants 1-2 wish, they can file suit for possession based on title as has been observed in the case of Tribhuvanshankar (supra) but in absence of any documentary or oral evidence about inception/creation of tenancy by defendants 1-2 or their predecessors-in-title, payment of rent by plaintiffs or their ancestors or acceptance of tenancy by plaintiffs in any manner, it cannot be said that plaintiffs have denied title of defendants 1-2, which has made them liable to be evicted from property in question. However, it is well settled that derivative title can always be challenged by tenant, if he has not acknowledged title of landlord expressly or by payment of rent. In the present case, nothing is there on record. In these circumstances, decree of eviction on ground under section 12(1)(c) of the Act is not sustainable.
23. While allowing counter claim, trial Court held that rate of rent of the accommodation is Rs.300/- p.m. but in the civil appeal filed by plaintiffs, although first appellate Court has affirmed decree of eviction on ground under section 12(1)(a) and (c) of the Act, but at the same time modified the finding about rate of rent holding it to be Rs. 100/- p.m. instead of Rs. 300/- p.m. In my considered opinion, while holding rate of rent of the accommodation to be Rs. 100/- p.m. that too at the time of final judgment, decree of eviction cannot be passed without giving further opportunity to tenant to clear arrears of rent, especially in the circumstances where no order of fixing/payment of provisional rent was passed. As such decree of eviction on ground under section 12(1)(a) of the Act, is also not sustainable.
24. Consequently, both the substantial question of law no. 1 & 2 are also decided against defendants 1-2 and in favour of plaintiffs.
13 S.A. NO.1235/201025. Resultantly, second appeal succeeds and is allowed and by setting aside judgment and decree of eviction, counter claim filed by defendants 1-2 is hereby dismissed, however, judgment and decree dismissing the suit of the plaintiffs is upheld.
26. Pending application(s), if any, shall stand disposed off.
27. Parties shall bear their own costs.
(DWARKA DHISH BANSAL) JUDGE KPS Digitally signed by KUMARI PALLAVI SINHA Date: 2023.12.05 13:47:09 +05'30'