Madhya Pradesh High Court
Farid Ahmad Luhar vs Vikram Singh Dead Thru.Lrs Jitendra on 11 October, 2023
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 11th OF OCTOBER, 2023
SECOND APPEAL No. 199 of 2008
BETWEEN:-
FARID AHMAD LUHAR S/O BABU KHAN
LUHAR, AGED ABOUT 46 YEARS,
OCCUPATION: BUSINESS KHATTALI
ROAD,NEAR BUS-
STAND,POST.JOBAT,JHABUA (MADHYA
PRADESH)
.....APPELLANT
(SHRI A.K SETHI, SENIOR ADVOCATE ALONG WITH SHRI HARISH
JOSHI, ADVOCATE)
AND
VIKRAM SINGH DEAD THRU.LR'S
JITENDRA S/O VIKRAM SINGH THAKUR,
1. AGED ABOUT 52 YEARS, OCCUPATION:
SERVICE JOBAT,JHABUA (MADHYA
PRADESH)
RAJENDRA KUMAR S/O LATE VIKRAM
SINGH THAKUR, AGED ABOUT 45 YEARS,
2.
OCCUPATION: BUSINESS JOBAT,JHABUA
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AYUSHMAN CHOUDHARY, ADVOCATE )
___________________________________________________________________________________________
Reserved on : 12/07/2023
Pronounced on : 12/10/2023
___________________________________________________________________________________________
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 12-10-2023
17:15:03
2
This appeal coming on for judgement this day, the court passed
the following:
JUDGMENT
1] This second appeal was admitted on the following substantial question of law:-
"(1)whether the decree for eviction under Section 12(1) (c) of the M.P. Accommodation Control Act merely on the basis of Exhibit P-1 and P-2 involving no issue about the relationship of landlord and tenant between the parties to the suit is sustainable in law."
2] In brief facts of the case are that the suit was filed on 10.07.2003, for eviction by the respondent/plaintiff on the ground of non-payment of rent, and also on the ground of denial of the title of the suit property of the respondent/plaintiff by the appellant/defendant, and the learned judge of the trial Court, has decreed the same vide its judgment and decree dated 27.10.2005. The appeal preferred against the aforesaid judgment and decree has also been rejected by the District Appellate Court vide its judgment and decree dated 13.02.2008. Hence, this second appeal on the aforesaid substantial question of law.
3] The respondent/plaintiff filed the suit for eviction on the ground that he was sold the land admeasuring 140 ft X 180 ft by the Nagar Panchayat vide resolution No.03 dated 17.10.1048 (Exhibit P-8), according to which the plot's value was Rs.200/-. Certificate to this effect was also issued by the Municipal Council Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 12-10-2023 17:15:03 3 on 21.06.1984 vide Ex.P/10.
4] Further contention of the respondent/ plaintiff was that he had constructed various shop on the said plot, and certain area has also been kept free of construction out of which 15ft X 20 ft land has been rented by the respondent/plaintiff to appellant/defendant on 1.5.1992, for a rent of RS.350/- PM. The tenancy was oral. On the said land, the appellant/defendant has constructed a tin-shed without permission of the respondent/plaintiff, and also obtained an electricity connection, and has not paid rent since 1.1.2001. The appellant/defendant also filed a civil Suit No.14-A/2002 against the son of the respondent/plaintiff Jitendra Singh, and thereafter the respondent/plaintiff terminated the tenancy vide its notice dated 26.12.2002.
5] A reply to the notice was sent by the appellant/defendant on 17.2.2003 denying the title of the respondent/plaintiff on the said land, and also demanded documents from him to which the respondent/plaintiff also sent a reply on 30.04.2003 along with all the relevant documents to which appellant/defendant again sent a reply on 8.5.2003, denying title respondent/plaintiff. 6] Thus, the suit was filed for eviction on the ground of denial of title and nonpayment of rent.
7] The aforesaid suit has been opposed by the appellant/defendant on the ground that the respondent/plaintiff was never the owner of the land and has not purchased the land from Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 12-10-2023 17:15:03 4 Municipal Council. In the special pleadings, it is stated that the erstwhile Jobat State was merged into Central India in June-July, 1948, and the respondent/plaintiff was nominated in the Municipal Council by the Manager/Administrator of the State, and thus, the Municipal Council was the Trustee of the land and without Government's permission could not have transferred the land to any of its Members, and no documents have been filed on the record by the respondent/plaintiff to demonstrate that the land was sold in any public auction or that there was any permission taken by the council for the State. It was also stated that the appellant/defendant had sought the title documents by the respondent/plaintiff but the same were not supplied to him, and now on the basis of some forged documents, this suit has been filed which is liable to be rejected.
8] Shri A.K.Sethi, learned senior counsel for the appellant has submitted that both the Courts below have erred in relying upon the documents filed by the plaintiff namely Ex-P-1 which is a judgment dated 7.2.2004 (Vikram Singh Vs. Farid Ahmed) passed in a case which was filed by the appellant/defendant Farid Ahmed against the MPEB, Jobat and Jitendra who is the son of the present respondent/plaintiff. The aforesaid suit was for permanent injunction, confined only to disconnection of the electricity by the MPEB, and the other document Ex-P2 is the decree passed in the aforesaid suit.
Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 12-10-2023 17:15:03 59] Counsel for the appellant has further submitted that both the Courts below have erred in law, in not considering the fact that the aforesaid decree dated 7.2.2004 has also not been challenged by the respondent/plaintiff or his son before any Court of law. It is also submitted that when the plaintiff/respondent had come with a plea that his title has been denied by the appellant/defendant/tenant, in that case, it was incumbent upon the respondent/plaintiff to prove his title, and the learned judge of the trial Court has erred in holding that the respondent/plaintiff has proved his title. 10] In support of his submissions, learned counsel for the appellant/defendant has relied upon the various decision rendered by the Hon'ble Supreme court as well as the Madhya Pradesh High Court in the case of M/s Paradies Industrial Corporation Vs. Kiln Plastics Products reported as AIR 1976 SC 309, Modula India Vs. Kamakshya Sindh Deo reported AIR 1989 SC 162, Ranjit Kumar Karmakar @ Dulal Karmakar Vs. Hari Shankar Das reported as 2019 (5) SCC 477, Sheela and others Vs. Firm Prahlad Rai Prem Prakash reported as 2002 (3) SCC 375, Rajendra Tiwary Vs. Basudeo Prasad and another reported as 2002(1) SCC 90 and Shabiha Masood Vs. Tahabur Ali Khan reported as 1998 (2) MPLJ 610, Gaya Prasad Vs. Pooranchand and another reported as MPLJ SN (49).
11] Shri Ayushman Choudhary, learned counsel for the respondent/plaintiff, on the other hand has vehemently opposed the prayer. It is submitted that no case for interference is made out as both the Courts below have rightly appreciated the evidence on Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 12-10-2023 17:15:03 6 record.
12] Shri Choudhary, has also submitted that even otherwise the respondent/plaintiff has not paid rent for a long period of time, and as such he deserves eviction on the ground of nonpayment of rent as provided under Section 13(1) of the M.P. Accommodation Control Act 1961.
13] In support of his submissions, Shri Chaudhary has relied upon the various decision rendered by the Hon'ble Supreme court as well as of this Court viz., Rajesh Omprakash Goel Vs. Smt. Mullo reported as 2000(2)MPLJ 445, Ashok Kumar Mishra and another Vs. Goverdhan Bhai reported as (2018) 12 SCC 533, Sayeda Akhtar Vs. Abdul Ahad reported as (2003) 7 SCC 52, Heera Traders Vs. Kamla Jain reported as 2022 SCC online SC 220, Prakash Pahuja Vs. Devendra Kumar Jain reported as 2018 (3) MPLJ 68, Keshar Bai Vs. Chunnulal reported as (2014) 11 SCC 438, S. Thangappan Vs. P. Padmavathy reported as (1999) 7 SCC 474, Mst. HajaraBegum Vs. Guljar Khan reported as 1969 MPLJ 31.
14] Learned counsel for the respondents has also submitted that the appellant has not paid the rent since the beginning of the trial, and as such his defence is liable to be struck out under Section 13 of the Accommodation Control Act.
15] In rebuttal, learned sr. counsel for the appellant has submitted that the appellant has denied the title of the plaintiff right from the day one, and even in his earlier suit also, he has not accepted the title of the plaintiff, and thus, even if he has not paid the rent, at the most, his defence may be struck out, however, his cross-examination of the Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 12-10-2023 17:15:03 7 plaintiff's witnesses cannot be discarded in toto. on general principles. In support of his submissions, learned counsel for the appellant has relied upon the decision rendered by the Supreme Court in the case of M/s. Paradise Industrial Corporation vs. M/s. Kiln Plastics Products reported as AIR 1976 SC 309.
16] Heard learned counsel for the parties and perused the record. 17] From the record it is found that the learned judge of the trial has framed as many as 8 issues out of which issue no.1 relates to title of the respondent/plaintiff which has been decided in affirmative and it held that the plaintiff is owner of the land. 18] On a close scrutiny of the record, this court finds that in support of his suit, the plaintiff has not proved even a single document through himself while deposing in the court, and all the documents proved by him from Ex.P/1 to P/12 have been put to the defendant witness DW/1 Farid Mohammad for the first time in his cross-examination, to which also he has denied, except the judgement (Exx.P/1) and decree (Ex.P/2), passed in his suit for injunction. Thus, it is apparent that there was no opportunity afforded to the defendant to cross examine the plaintiff on these documents.
19] On perusal of the deposition of Vikram Singh S/o Khupan Singh (PW-1) it is found that although, in his affidavit of examination-in-chief under Or,18 r.4 of CPC dated 24.04.2004, these documents have been proved by him as Ex.P/3 and P/4, but these documents have been actually brought on record only on Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 12-10-2023 17:15:03 8 17.02.2005, in the cross-examination of DW/1 Farid Mohammad, as Ex.P/1 and P/2, and not by Vikram Singh (PW-1). Similar is the situation with all the other documents proved by the plaintiff which have been put to the DW/1 Farid in his cross-examination. 20] So far as the judgment and decree, Ex.P/1 and Ex.P/2, passed in Civil Suit 14-A/2002 filed by the appellant/defendant Farid Ahmed for injunction only are concerned,, they relate to the electricity supply to the defendant. A perusal of these documents clearly reveal that they do not reflect on the loandlordship or title of the plaintiff and only secure the right of the plaintiff to evict the defendant by following due procedure of law. Whereas Ex-P-3 is the certified copy of the plaint in the aforesaid suit C.S.No.14- A/2002. The other documents from Ex.P/4 to P/12, including the legal notices, the resolution of the Municipal Council, Jobat, District Jhabua dated 17.10.1948 etc. have also been proved by the respondent/plaintiff through the appellant/defendant DW-1 Farid Ahamad only.
21] In the aforesaid resolution Ex.P/8, it is mentioned that Vikram Singh wants to purchase the said land at Sahi Mohalla which is allowed to be given to him. A certificate Ex-P10 has also been issued by the Municipal Council, Jobat stating that the respondent/plaintiff is the owner of the said land and a map Ex-P11 has also been proved on record. All these documents are certified copies issued by the Municipal Council Jobat and have been denied Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 12-10-2023 17:15:03 9 by DW/1 Farid Ahamad to be forged.
22] The appellant/defendant has also examined DW-5 Ratan, who happens to be employee of Municipal Council Jobat and has stated that he has not found any record of 17.10.1948 in the office of Municipal Council.
23] In the considered opinion of this court, these documents Ex.P/1 to P/12 cannot be relied upon for two reasons. Firstly, they have been proved by the plaintiff through the defendants witness, thereby giving no opportunity to the defendant to cross examine the plaintiff regarding the veracity of these documents and secondly, these are only the certified copies, and there is no other evidence that original of these ever existed, and no employee of Municipal Council Jobat has been examined in this behalf by the plaintiff. 24] In the considered opinion of this court, in a case of eviction, where the defendant has also disputed the ownership of the plaintiff, it was fatal to the plaintiff to not to prove any document of his title or otherwise, in his examination-in-chief. Thus, it is held that the plaintiff has not been able to prove his own case. 25] In the case of Sheela and others vs. Firm Prahlad Rai Prem Prakash (supra), the Supreme Court has held as under:-
"In our opinion, denial of landlord's title or disclaimer of tenancy by tenant is an act which is likely to affect adversely and substantially the interest of the landlord and hence is a ground for eviction of tenant within the meaning of clause (c) of sub-section (1) of Section 12 of M.P. Accommodation Control Act, 1961. To amount to such denial or disclaimer, as would entail forfeiture of tenancy rights and incur the liability Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 12-10-2023 17:15:03 10 to be evicted, the tenant should have renounced his character as tenant and in clear and unequivocal terms set up title of the landlord in himself or in a third party. A tenant bona fide calling upon the landlord to prove his ownership or putting the landlord to proof of his title so as to protect himself (i.e. the tenant) or to earn a protection made available to him by Rent Control Law but without disowning his character of possession over the tenancy premises as tenant cannot be said to have denied the title of landlord or disclaimed the tenancy. Such an act of the tenant does not attract applicability of Section 12(1)
(c) abovesaid. It is the intention of the tenant, as culled out from the nature of the plea raised by him, which is determinative of its vulnerability."
(emphasis supplied) 26] So far as the contention of the respondents that the appellant has not paid the rent and hence, his defence has to be struck out, in the case of Sabiha Masood (supra) in para 3, it is held by the co- ordinate bench of this court as under:-
"3. In the suit for eviction based on a ground Under Section 12(1), the defendant has two types of defences (1) which are known as common law defence and (2) which are available to the tenant under the Accommodation Control Act itself. The Common Law defence are like the liability to pay the rent, the arrears of rent, the relationship of landlord and tenant and the ownership of the property. But under the Accommodation Control Act, the defences which are available to the tenant are to disprove the case of the landlord and show to the Court by leading cogent evidence that availability of a ground Under Section 12(1) is not made out. When a tenant challenges the ownership or the relationship of landlord and tenant, this may probably be a dispute Under Section 13(3) of the Act. A Court before striking out the defence is required to decide the said dispute. If despite direction the tenant does not deposit the rent then his defence available to him under the Accommodation Control Act can certainly be struck out but this striking out the Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 12-10-2023 17:15:03 11 defence available to a tenant under the Accommodation Control Act would not have the effect of striking out the defences of the tenant which are available to him under the Common/General Law. If a tenant wants to take advantage of the defences which are available to him under the Accommodation Control Act, then he should deposit the rent but if he does not deposit, then such defence would not be available to him. If such a tenant proves his common law defence by leading cogent evidence that there does not exist relationship of landlord and tenant or the plaintiff is not the owner or even by cross-examining the plaintiff's defences that a ground is not available to the landlord to evict the defendant, then this right is not hampered by striking out the defence. The effect is only that the defendant would not be permitted to lead evidence to disprove the availability of the ground Under Section 12(1) of M. P. Accommodation Control Act. "
(emphasis supplied) 27] In view of the same, merely if the rent has not been paid by the appellant/defendant, who has challenged the title of the plaintiff, it cannot be said that his entire evidence is liable to be struck out, as he can certainly rely upon such deposition of the plaintiff as also of the defendant, which are available to him/her under the common law defence. Thus, the contention of the respondents cannot be accepted that if the rent is not deposited by the appellant/defendant, his entire defence is liable to be struck out. 28] So far as the decisions relied upon by the counsel for the respondent are concerned, the same are distinguishable on facts and have no application under the facts and circumstances of the present case.
29] In such circumstances, the relationship of landlord and tenant Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 12-10-2023 17:15:03 12 as tried to be established by the respondent/plaintiff of the said land cannot be said to be proved by Ex-P-1 and P-2, and thus, it is held that these documents cannot be relied upon to decree the suit of eviction under Section 12(1) (c) of M.P. Accommodation Control Act.
30] Resultantly, the substantial question of law is answered in affirmative, i.e., in favour of the appellant, and the second appeal stands allowed. Consequently, the impugned judgement and decree are also hereby set aside.
Sd/-
(SUBODH ABHYANKAR) JUDGE das/joshi Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 12-10-2023 17:15:03