Madhya Pradesh High Court
Prakash Pahuja vs Devendra Kumar Jain on 15 February, 2018
IN THE HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. F.A. No. 92/2009
Parties Name Prakash Pahuja
Vs.
Devendra Kumar Jain
Date of Judgment 15/02/18
Bench Constituted Single Bench
Judgment delivered by Justice Sujoy Paul
Whether approved for reporting No
Name of counsels for parties For Appellant: Smt. Shobha Menon,
Senior Advocate with Shri Rahul Choubey,
Advocate.
Respondent: Shri Brahmadatt Singh,
Advocate.
Law laid down -
Significant paragraph numbers -
(O R D E R)
15.02.2018
This appeal filed under Section 96 of the Code of Civil Procedure is directed against the judgment and decree dated 17.12.2008 passed in RCS No.04-A/2004.
2. The appellant is aggrieved by this judgment and contended that the respondent/plaintiff has miserably failed to prove the bonafide need of the suit property, ownership on the said property and non-availability of other suitable accommodation. Ms. Shobha Menon, learned senior counsel placed reliance on Section 12(1)(f) of the M.P. Accommodation & Control Act, 1961 (hereinafter after referred as "the Act") and contended that Section 12 is couched in the mandatory language and unless the essential ingredients of Section 12 are satisfied, no decree for eviction of tenant can be passed.
3. To elaborate aforesaid contention, learned senior counsel contended that the suit property was originally owned by Shri Chotelal, father of present
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F.A. No. 92 of 2009plaintiff. Shri Chotelal died on 1.10.1966, his wife also died on 13.09.1976. As per plaint averments, an oral partition has taken place between two brothers, namely, plaintiff and Kundan Lal on 30.11.1992. The instant suit was filed on 28.06.2004. The municipal record shows that Kundan Lal is owner of the suit property. It is argued that this factum of ownership is established in view of production of relevant record of municipal corporation. The plaintiff during his cross-examination admitted this fact that in the record of municipal corporation, the property is shown in the name of his brother, Kundan Lal. Thus, the factum of "ownership" is not established by the plaintiff. By placing reliance on 2002 (3) SCC 375, [Sheela vs. Firm Prahlad Rai Prem Prakash] and on 2012 (2) MPLJ 460 [Dayal Das (dead) through Lrs' Smt. Kamla Chenani and Others Vs. Rajendra Prasad Gautam], it is urged that in a suit for eviction, it is not necessary for the plaintiff to prove his ownership in the same manner in which it is required to be proved in a suit for declaration of title. Yet there must be some material to establish ownership which is an essential ingredient for invoking Clause (f).
4. The next contention of the appellant is that the adjacent shop was vacated by Shankar Electricity Wala and plaintiff used this shop for his business for about six months. Thereafter, this very shop was given on rent to Shri Jitu Sahu who opened a tea shop in the said place. The shop was also vacated by Gopal Jain and despite availability of the shop, the plaintiff did not conduct his business from the said shop. This shows that alternative shop was very much available with the plaintiff and there was no bona fide need for the plaintiff. Reliance is placed on 1979 MPLJ 314 (Chirongilal Vs. Shankerlal), 2000 (1) MPHT 531 (Sarju Prasad Patel Vs. Nanakchand and others) and 2007 (2) MPLJ 566 (Vinod Kumar Agrawal Vs. Chandrakant Pandey and another). The appellant contended that the Court below framed four issues, namely, - (i) whether the defendant is a tenant of the suit property ? (ii) whether plaintiff has a bona fide need of suit property for doing his own business ? (iii) whether plaintiff has any other alternative land in Municipal area of Bhopal ? (iv) whether defendant has an alternative possession of suit property ? The issue No.1 and 2 were answered in affirmative whereas answer of other issues were in negative. Learned Senior Counsel attacked the finding of issue No.1 wherein the Court below held that the
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F.A. No. 92 of 2009plaintiff has proved his ownership on the strength of Exhibit P-1 & P-2. It is argued that Ex.P/1 & P/2 were executed way back on 21.02.1958 and 10.06.1959 respectively whereas as per the plaint averments itself, the oral participation took place on 30.11.1982. Thus, the finding aforesaid is perverse in nature and Exhibit P/1 and P/2, by no stretch of imagination, can be the basis for establishing any oral partition. It is further argued that the finding of Issue No.1 is liable to be interfered with in view of the palpable perversity regarding appreciation of Ex.P/1 and P/2.
5. In nutshell, the stand of the appellant is that the plaintiff has miserably failed to prove the ownership, bona fide need and non-availability of alternative place to run his business. During the course of argument, learned senior counsel for the appellant contended that the stand of the plaintiff in his plaint was that he was running business in the shop of one Shri Pramod Jain whereas in cross- examination, the plaintiff deposed that he is running his business on a "patia" in front of the shop of Pramod Jain. No evidence which runs contrary to the pleadings can be accepted, yet the Court below has accepted such contention. Learned senior counsel for the appellant contended that the reasons given in Para 9 of the impugned judgment and conclusion drawn on the basis of such reason are mutually inconsistent.
6. Per contra, Shri Brahmadatt Singh, learned counsel for the respondent/plaintiff contended that as per the judgment of Sheela (supra), the plaintiff was not required to establish his title in the manner it is required to be established in a suit for declaration of title. Although the defendant denied the factum of ownership in his written statement, during the cross-examination, he candidly admitted that plaintiff is a landlord/owner of the property. Heavy reliance is placed on the deposition of present appellant. In support of this contention, Shri Singh relied on the order passed by this Court in S.A. No.1003/2016 (Rajendra Prasad Vs.Hitendra Kumar Jain), 2006 (1) MPLJ 123 (Mahila Samiti Vs. Holaram Sindhi) and 2006 (1) MPLJ 381 (Ram Pukar Singh Vs. Bhimsen and others). Ex.D-1 was relied upon to contend that the suit filed by the plaintiff against Shankarlal was simply withdrawn and, therefore, no interference can be drawn by this Court relating to ownership, bona fide need
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F.A. No. 92 of 2009and non-availability of accommodation etc., the plaintiff is the best judge to decide which accommodation is suitable to run his business. Since, the other accommodation was not adequate to run the business of the plaintiff, the Court below has rightly held that the plaintiff has the bona fide need of accommodation. Shri Brahmadatt Singh had also relied on the judgment of Supreme Court in the case of AIR 2002 SC 1264 (Sheela and others Vs. Firm Prahlad Rai Prem Prakash) to bolster his submission that adequate proof was available before the trial Court to consider the question of ownership. In regard to argument of learned senior counsel on the finding of issue No.4, Shri B.D. Singh contended that because of typographical error in last sentence of para 9, the word "successful" ("lQy") is being typed whereas it should have been "unsuccessful" ("vlQy"). He submits that a conjoint reading of conclusion drawn in Para 5 in relation to issue No.4 and Para 9 of the judgment makes it clear that it is only an ignorable clerical/typing mistake which will not improve the case of the present appellant.
7. No other point is pressed by learned counsel for the parties.
8. I have heard learned counsel for the parties at length and perused the record.
9. In the present case, admittedly the suit was filed by the plaintiff solely on the basis of Section 12(1)(f) of the Act. This provision reads as under:
"12(f). that the accommodation let for non-residential purposes is required bonafide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably non-residential accommodation of his own in his occupation in the city or town concerned;"
10. As noticed, learned senior counsel contended that the legislature has employed the words "landlord" and "owner" in Clause (f). Thus, the plaintiff claiming relief of eviction of tenant must establish that he is "owner" as well as "landlord". Reliance is placed on the judgment of this Court in the case of Dayal Das (Supra). This point requires consideration. Pertinently, the Supreme Court
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F.A. No. 92 of 2009considered this aspect in the case of Sheela and other (Supra). The Apex Court opined as under:
"10. While seeking an ejectment on the ground of bona fide requirement under clause (f) abovesaid the landlord is required to allege and prove not only that he is a "landlord" but also that he is the "owner" of the premises. The definitions of "landlord" and "tenant" as given in clauses (b) and (i) of Section 2 of the Act make it clear that under the Act the concept of landlordship is different from that of ownership. A person may be a "landlord" though not an "owner" of the premises. The factor determinative of landlordship is the factum of his receiving or his entitlement to receive the rent of any accommodation. Such receiving or right to receive the rent may be on the own account of the landlord or on account of or for the benefit of any other person. A trustee, a guardian and a receiver are also included in the definition of landlord. Such landlord would be entitled to seek an eviction of the tenant on one or more of such grounds falling within the ambit of Section 12(1) of the Act which do not require the landlord to be an owner also so as to be entitled to successfully maintain a claim for eviction. Clause (f) contemplates a claim for eviction being maintained by an owner-landlord and not a landlord merely. Though of course, we may hasten to add, that the concept of ownership in a landlord-tenant litigation governed by rent control law has to be distinguished from the one in a title suit. Ownership is a relative term, the import whereof depends on the context in which it is used. In rent control legislation, the landlord can be said to be the owner if he is entitled in his own legal right, as distinguished from for and on behalf of someone else, to evict the tenant and then to retain, control, hold and use the premises for himself. What may suffice and hold good as proof of ownership in a landlord-tenant litigation probably may or may not be enough to successfully sustain a claim for ownership in a title suit. In M.M. Quasimv. Manohar Lal Sharma [(1981) 3 SCC 36] it was held that an "owner-landlord" who can seek eviction on the ground of his personal requirement is one who has a right against the whole world to occupy the building in his own right and exclude anyone holding a title lesser than his own. In Dilbagrai Punjabi v. Sharad Chandra [1988 Supp SCC 710] this Court held that it was essential to sustain a claim of eviction under Section 12(1)(f) of the Act to establish that the plaintiff was the owner of the premises. However, the Court upheld the ownership of the landlord having been proved on the basis of an admission of the ownership of the plaintiff made by the defendant in reply to the notice given before the institution of the suit and the recital of the name of the plaintiff as the owner of the property contained in the receipts issued by the landlord to the tenant over a period of time. Thus, the burden of proving ownership in a suit between landlord and tenant where the landlord-tenant relationship is either admitted or proved is not so heavy as in a title suit and lesser quantum of proof may suffice than what would be needed in a suit based on title against a person setting up a contending title while
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disputing the title of the plaintiff. Nevertheless, pleading and proving ownership, in the sense as it carries in rent control law, is one of the ingredients of the ground under Section 12(1)(f) of the Act."
(Emphasis supplied)
11. A bare perusal of principle laid down in this judgment makes it clear that in a suit for eviction, the plaintiff is not required to prove his title on the basis of same principles which are applicable in the suit for declaration of title. The Apex Court considered the aspect of ownership in this judgment and opined that in landlord tenant litigation, the landlord can be said to be owner if he is entitled in his own legal right to evict the tenant and then to retain, control, hold and use the premises for himself. To determine these aspects, the Court has to examine the facts and circumstances of each case and no straight jacket formula can be laid down. Thus, the core issue is whether the Court below was justified in answering the Issue No.1 in favour of the plaintiff. No doubt, the Court below erroneously opined that Ex.P/1 & P/2 shows that these documents are related with partition. These documents also became reason to hold that the plaintiff is the landlord. A plain reading of Ex.P/1 & P/2 shows that these documents were executed way back on 21.02.1958 & 10.06.1959. Thus, these documents, by no stretch of imagination, can be said to be related with partition of the suit property. To this extent, I find substance in the argument of learned counsel for the appellant. These documents cannot be basis to decide Issue No.1 in favour of the plaintiff. However, a minute reading of para 6 of the impugned judgment shows that the Court below has taken into account the statement of present appellant wherein it was categorically admitted by him that rent has been continuously paid to the plaintiff. It was specifically admitted that plaintiff has been recognized by the defendant as his landlord. In view of this candid admission of present appellant during cross-examination, the Court below opined that after having admitted the relationship and factum of payment of rent to the plaintiff, the appellant is "estopped" under Section 116 of the Evidence Act. The deposition of the appellant shows that his admission regarding payment of rent to the plaintiff is clear and unequivocal. The appellant clearly stated that he treats Shri Devendra Kumar Jain as the landlord. He paid rent to plaintiff since beginning. He did not pay rent to anybody else. He received receipts of rent from plaintiff and he is still treating the plaintiff as the landlord.
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F.A. No. 92 of 200912. In the opinion of this Court, the said admission of appellant satisfies the determinitive factor of landlordship. In view of the aforesaid statement of appellant, in my view, the Court below has rightly applied Section 116 of the Evidence Act. I find support in my view from the case reported in 1996 (8) SCC 632 [Padmini Chandrasekharan vs. R. Rajagopal Reddy]. The Apex Court held that in the face of conduct of the appellant and her husband in paying the rent to one Shri Reddy, this amounts to attorn said Shri Reddy as owner of the demised property. In 2000 (1) SCC 451 [C. Chandramohan vs. Sengottaiyan], the Apex Court held that the respondents started paying the rent to the appellant. The High Court has also referred to the evidence of the appellant in which he admitted that the respondents did not deny that he was the landlord when depositing the rent in the Court and that they were paying rent to him. The subsequent denial was held to be not bonafide. This Court in 2006 (1) MPLJ 123 [Mahila Samiti vs. Hola Ram Sindhi] held that the factum of payment of rent to the plaintiff was admitted by the other side. The tenant once having admitted the tenancy is estopped from challenging the title of the landlord by virtue of Section 116 of the Evidence Act. The doctrine of tenant's estoppel was considered and it was poignantly held that the said doctrine got statutory recognition in Section 116 of the Indian Evidence Act, 1872. The judgment of Zehra Bai vs. Jagmohan & others reported in 2000 (2) MPWN 142 was considered whereby after paying the rent to plaintiff by tenant it was held that it does not lie in the mouth of defendant to dispute the ownership of the landlord. In 2008 (2) MPLJ 365 [Karan Lal Kesharwani vs. Sardar House] it was again held that after having paid the rent to the plaintiff for long time, the principle of "estoppel'' will come into play. Interestingly, in this case also during cross-examination, the tenant has admitted that he is paying rent to the appellant and therefore Section 116 of the Evidence Act is rightly pressed into service. In a recent judgment reported in 2017 (5) SCC 451 [Om Prakash vs. Mishri Lal], the Supreme Court opined that the original defendant having accepted Smt Chameli Devi as his landlady and thereafter continued to pay rent to her son Bhola Nath, the father of the appellants, in terms of definition of "landlord", the respondents are estopped under Section 116 of the Evidence Act. It was further held that a tenant during the continuance of the tenancy is debarred on the doctrine of estoppel from denying the title of his landlord as is enshrined in Section 116 of the said Act. The inspiration is taken from the earlier judgments
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F.A. No. 92 of 2009reported in 1999 (7) SCC 474 [S. Thangappan vs. P. Padmavathy] and 2006 (5) SCC 532 [Bhogadi Kannababu vs. Vuggina Pydamma]. In this view of this matter, I am unable to hold that Issue No.1 was wrongly decided by the Court below. Thus, no interference is warranted on this count.
13. So far the question of non-availability of alternative accommodation to the plaintiff is concerned, it is noteworthy that such alternative accommodation must be suitable and convenient in all respect. This was clearly held in the case of Sarju Prasad Patel (Supra). This is trite law that the plaintiff/landlord is the best judge to decide whether the alternative accommodation will suit his requirement or not. In Meenal Eknath Eshirsagar vs. Traders & Agencies and another, 1996 (5) SCC 344 and Prativa Devi vs. T.V. Krishnan, 1996 (5) SCC 353, the Apex Court has held that it is for the landlord to decide how he desires to beneficially enjoy his property and it is not for the courts to dictate him the manner in which he should enjoy or utilise his property. The same view is taken by this court in Kailash Chandra Shankarlal Trivedi vs. Punjab National Bank Ltd. And others, 2000 (3) MPLJ 343. In the case of Akhileshwar Kumar and others vs. Mustaquim and others, 2003 (1) SCC 462, the Apex Court opined that once the bonafide requirement of a landlord is established, then the choice of the accommodation which would be more suitable for his requirement has to be left to the subjective choice of the landlord and court cannot thrust its own choice upon him. Similarly, in the case of Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta, (1999) 6 SCC 222, the Apex Court followed the aforesaid ratio decidendi. This depends on the facts and circumstances of a particular case. If need is shows as real and genuine and not for any collateral purpose unconnected with the bonafide requirement, the relief to the plaintiff can be denied. This view is taken by this Court in Vinod Kumar (Supra). In the instant case, the plaintiff has established that he is running his business from a different place and he does not have adequate space to run his shop. If he had run the shop from the adjacent shop for six months' and then discontinued it, an inference can be drawn that the said shop was not suitable to run his business. Apart from this, the record shows that the plaintiff has satisfactorily established that he is in a bonafide need of suit shop for running his own business. The judgment of Chirongilal (Supra) cannot be pressed into service because in the said case, the plaintiff himself accepted
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that the alternative shop given by him to his relative was suitable for his purposes. In this backdrop, the appeal filed by the plaintiff/landlord was dismissed.
14. In the light of aforesaid analysis, in the considered opinion of this Court, the necessary ingredients for grant of relief flowing from Section 12(1)(f) of the Act were satisfied by the plaintiff and Court below has not committed any error which warrants interference by this Court. The impugned judgment is passed on proper appreciation of material and no perversity which requires interference by this Court is established. Resultantly, appeal fails and is hereby dismissed.
(Sujoy Paul) Judge s@if Digitally signed by SAIFAN KHAN Date: 2018.02.15 15:07:17 +05'30'