Madhya Pradesh High Court
Ram Pukar Singh vs Bhimsen And Anr. on 15 September, 2005
Equivalent citations: 2006(2)MPHT153
JUDGMENT Abhay M. Naik, J.
1. Appeal is heard on the following substantial question of law :-
Whether the Courts below erred in decreeing the suit for eviction under Section 12(1)(f) of the M.P. Accommodation Control Act, particularly when the plaintiff/respondents failed to prove that they are owner of the suit house ?
2. Short facts giving rise to the present appeal are that the plaintiff/respondent instituted a suit for eviction and recovery of arrears of rent against defendant/appellant in respect of the suit premises comprised in Survey No. 83/1 situated in Municipal Ward No. 10 of Sidhi, Amha. It is pleaded in the plaint that the suit house is owned by the plaintiff/respondent No. 1 who has been unwell physically and mentally for last number of years and due to this the suit house is being lookedafter by the plaintiff/respondent No. 2 being his wife. It is further pleaded that the suit house was let out to the defendant by the plaintiffs @ Rs. 100 per month as rent. Some 15 years before the institution of the suit, the rent was increased from time to time and finally the same became payable at the rate of Rs. 300/- per month from the year 1990. It is further pleaded that the rent is due w.e.f. March, 1991. The defendant is residing in the Government quarter No. 3 after its allotment in his favour. The plaintiff pleaded that the suit premises is required bonafide by them for residing therein as they want to reside permanently in the city of Sidhi on account of availability of the facilities pertaining to education of the children and medical. It is also stated in the plaint that the disputed premises is in dilapidated condition and the plaintiffs went to reconstruct it after demolition of the existing accommodation. The defendant/appellant submitted his written statement and denied the claim of the plaintiff's. They inter alia contended that they are not aware of the title of the house stated to be situated in Survey No. 83/1. It is further stated that a kachha house is situated in Survey No. 81 of Village Amha which was obtained by the defendant/appellant on rent @ Rs. 40 per month from plaintiff No. 1 and one person named Ganga Prasad. It was disclosed at that time that the said house belonged to Ganga Prasad. It was settled as per the defendant that he would pay the rent to the defendant No. 1 for the said Ganga Prasad. As regards the arrears of rent, it is stated in the written statement that the defendant paid the rent upto May, 1993 in a regular manner to the plaintiff No. 1 and is further prepared to pay rent w.e.f. June, 1993. As regards, allotment of Government quarter No. 3 to the defendant, it is stated in the written statement that the quarter was allotted to the defendant in the year 1991 which was not sufficient for the entire family of the defendant. Defendant is still residing in the suit house and the Government quarter has been occupied by the sons of the defendant. It is further submitted in the written statement that the plaintiffs are holding agricultural land in the Village Bhuimad and there is no occasion for the plaintiffs to reside at Sidhi without any occupation. The defendant has further set up a defence that an agreement of sale by the plaintiff No. 1 in favour of defendant was arrived at in the month of June, 1992 for a consideration of Rs. 30,000/-. Since, the defendant was going to purchase the suit premises, he with the consent of the plaintiff No. 1 made repairs by spending Rs. 20,000/-. After such construction/repairs, the condition of the suit house is quite good and is not of dilapidated one. It is further stated that on account of escalation in the price, the plaintiff No. 1 became dishonest and he is demanding a consideration. The defendant having denied to accept the request of defendant No. 1 has thus, been wrongly sued under Section 12(1)(f) of the M.P. Accommodation Control Act for eviction.
3. Learned Trial Judge raised various issues including issues pertaining to creation of tenancy between plaintiffs and defendants @ Rs. 300/- per month and also pertaining to bonafide need of the plaintiffs.
4. After recording the evidence, learned Trial Judge decreed the suit for eviction in favour of the plaintiffs with a finding that there exists a relationship of landlord and tenant between plaintiffs and defendants and the plaintiffs are entitled to a decree for ejectment under Section 12(1)(e) of the M.P. Accommodation Control Act. The rate of rent was held to be Rs. 150/- per month. Thus, aggrieved by the same, the defendant/appellant preferred Civil Appeal No. 85-A/2002 which has been dismissed by the Lower Appellate Court on 18-11-2002. Aggrieved by the same, this appeal has been preferred which was admitted on the substantial question of law stated hereinabove.
5. Heard the learned Counsels and perused the material on record.
6. Shri Amitabh Gupta, learned Counsel for the defendant/appellant strenuously submitted that the plaintiffs having failed to prove their ownership, are not entitled to a decree under Section 12(1)(e) of the M.P. Accommodation Control Act (it be seen that the requirement projected in the plaint pertains lo the bon afide residential need and issue No. 4 was raised by the Trial Court regarding the alleged bona fide need for residential purpose. Thus, Clause (f) of Section 12(1) of the M.P. Accommodation Control Act seems to have been mentioned in the substantial question of law due to typographical error. Both the Counsels for the parties agreed that there ought to have been reference to Section 12(1)(e) in the substantial question of law, since, the element of ownership is required as envisaged in Section 12(1)(e) and Section 12(1)(f) both. The said typographical error does not make any substantial difference in deciding the same in accordance with law. For clarity, Section 12(1)(e) and Section 12(1)(f) are reproduced below :-
(e) that the accommodation let for residential purposes is required bona fide by the landlord for occupation as a residence for himself or for any member of his family, 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 suitable residential accommodation of his own in his occupation in the city or town concerned;
(f) that the accommodation let for non-residential purposes is required bona fide 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 suitable non- residential accommodation of his own in his occupation in the city or town concerned.
7. Learned Counsel for the appellant referred to Paragraph 3 of the written statement and contended that he had obtained the kachcha house situated in Survey No. 81 of Village Amha @ Rs. 40/- per month as rent from plaintiff No. 1 and one Ganga Prasad with a disclosure that the suit premises belongs to Ganga Prasad. It was further pleaded by the defendant that he was a tenant of Ganga Prasad and the defendant No. 1 was authorised to realize rent on behalf of Ganga Prasad. Learned Counsel further referred to Ex. D-l which is a Khasra with respect to Survey No. 81 of Village Amha. In this document there is an entry pertaining to a house shown to be owned by Ganga Prasad, son of Ramdulare. Learned Counsel for the appellant submitted that the plaintiffs have not established their ownership and have failed to controvert the document marked as Ex. D-1. According to the learned Counsel, plaintiffs having failed to establish their ownership arc liable to be non-suited and the impugned judgment and decree of the Courts below are liable to be set aside being bad in law.
8. Before proceeding with the case, it is necessary to understand the degree of proof required to be established for ownership in a suit for eviction based on ground under Section 12(1)(e) and 12(1)(f) of the M.P. Accommodation Control Act wherein the ownership of the landlord is required to be proved. This is because the definition of landlord contained in Section 2(b) of the M.P. Accommodation Control Act, 1961 does not contemplate ownership. The word 'landlord' has been defined in Section 2(b) of the M.P. Accommodation Control Act as under :-
"landlord" means a person who for the time being is receiving or is entitled to receive, the rent of any accommodation, whether on his own account or on account of or for the benefit of any other person or as a trustee, guardian or receiver or any other person or who would so receive the rent or be entitled to receive the rent, if the accommodation were let to a tenant and includes every person not being a tenant who from time to time derives title under a landlord.
9. A bare perusal of the definition makes it clear that a landlord may even be devoid of ownership within the meaning of the said Act. Therefore, in a case where ownership is required to be proved, it is not sufficient for the plaintiff to merely establish his landlordship. He is also required simultaneously to prove that he is owner of the suit premises. However, there is a difference of degree of proof in a suit for eviction based on the relationship of landlord and tenant and in a suit for possession based on title. Both kinds of suits can not be treated at par. 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 can be needed in a suit based on title against a person setting up a contending title while disputing the title of the plaintiff.
10. Learned Counsel for the appellant relying upon the decisions of the Hon'ble Supreme Court of India Dilbagrai Punjabi v. Sharad Chandra reported as and Sheela and Ors. v. Firm Prahlad Rai Prem Prakash reported as , contended that proof of ownership of the plaintiff/landlord is must and in the absence of such proof, a suit for eviction under Section 12(1)(e)/(f) of the M.P. Accommodation Control Act ought not to have been decreed. As regards, the contention of the learned Counsel that the plaintiffs were required to prove ownership, it can not be disputed. The question in the present case is whether there is a sufficient proof regarding ownership of the plaintiff and requisites under the provisions of Section 12(1)(e) of the said Act are available on record and whether the Courts below have found the ownership of the plaintiffs on the basis of the proof on record permissible under the law. In the case of Dilbagrai (supra), the Courts below dismissed the suit for eviction based on Section 12(1)(f) of the M.P. Accommodation Control Act on the ground that the plaintiff did not produce any document of title. However, Hon'ble High Court has held the ownership of the plaintiff/landlord as proved on the basis of admission contained in the reply issued by the defendant in response to the notice given by the plaintiff. Moreover, the counterfoils of rent receipts described the plaintiff as owner of the property. This evidence was held by the Hon'ble High Court to be sufficient proof of ownership and the same was confirmed by the Apex Court. In the case of Sheela and Ors. (supra), the Apex Court had the occasion to deal with the degree of proof required to prove ownership in a suit based on ground under Section 12(1)(f) of the M.P. Accommodation Control Act. The Apex Court has held in Paragraph 10 of its judgment:-
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 definition of 'landlord' and 'tenant' as given in Clause (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 (1) 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 where of depends on the context in which it is used. In Rent Control Legislation, the landlord can be said to be 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.
11. Now this Court is required to apply the aforesaid yardsticks and to adjudge whether the suit has been rightly decreed. The plaintiffs in Paragraph 2 of the plaint have clearly pleaded that the suit house is situated in Survey No. 83/1 of Municipal Ward No. 10 of Municipality, Sidhi and is owned by the plaintiff No. 1. The defendant vide Paragraph 2 of his written statement had submitted that he had no knowledge about the ownership of the plaintiff No. 1 with respect to the house situated in Survey No. 83/1. Thus, there is no specific denial of ownership. Absence of knowledge about ownership as pleaded by the defendant/appellant in Paragraph 2 of his written statement does not amount to denial of the plaintiffs ownership in view of the decision of Division Bench of this Court in the case of Dhanbai v. State of M.P. and Ors. reported as 1978 MPLJ 717. Hon'ble Supreme Court of India in Jahuri Sah and Ors. v. Dwarika Prasad Jhunjhunwala and Ors. reported as , has considered Order 8 Rule 5, Civil Procedure Code which provides that "every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant shall be taken to be admitted, to say that a defendant has no knowledge of a fact pleaded by the plaintiff is not tantamount to a denial of the existence of that fact, not even an implied denial".
12. Perusal of the written statement of the defendant goes to show that the defendant in Paragraph 2 has merely pleaded absence of knowledge about the ownership of the plaintiffs. As regards Paragraph 3 of the written statement, it is suffice to observe that the defendant in the upper portion of this paragraph has merely stated that he has not obtained the house situated in Survey No. 83/1 from the plaintiff No. 1. As regards later portion of this paragraph, it be seen that the same relates to some kachha house stated to be situated in Survey No. 81. On perusal of the entire written statement, it is clear that there is no specific denial of the ownership of the plaintiffs with respect to the house situated in Survey No. 83/1. Thus, the defendant is not found to have denied the plaintiffs title cither expressly or by necessary implication in relation to the suit house situated in Survey No. 83/1. Besides the aforesaid, it may further be seen that the defendant has admitted that he used to pay rent to the plaintiff No. 1 (though for some Ganga Prasad according to the defendant himself). Ganga Prasad has been examined as P.W. 3. He has clearly stated in his written statement that he had not let out any house on rent to the defendant/appellant. Further, he has stated in Paragraph 3 of his statement that there is no dispute with the defendant with respect to the house situated at Survey No. 81 which belongs to Ganga Prasad.
13. Another aspect of this case is that the defendant has stated in Paragraph 5 of his written statement that the defendant used to pay the rent regularly upto May, 1993 to the plaintiff No. 1. Further he has pleaded in Paragraph 8 of the written statement that the plaintiff No. 1 had entered into an agreement with him to sell the suit house of the defendant. The defendant having taken this plea is estopped from denying the ownership of the plaintiff No. 1. Besides this, Section 116 of the Indian Evidence Act also comes into play. The Apex Court while dealing with the scope of Section 116 of the Indian Evidence Act in the case of Anar Devi v. Nathuram reported as 1994 JLJ 486 has held :-
Since the doctrine of "tenant's estoppel" could throw light on the question as to what can make a landlord to succeed in enforcing his right to recover possession of accommodation from a tenant under Clause (b) of Section 23A of the Act, it would be advantageous to refer to its scope and applicability, before taking it up for our consideration.
"Doctrine of tenant's estoppel" which governs the relationship of landlord and tenant is founded on a contract of tenancy entered into by them, is well settled. Jessel, M.R., who adverted to that doctrine in Stringer's Estate Shaw V. Jones- Ford LR 6 Ch. D. 1, explains it thus :
...Where a man having no title obtains possession of land under a demise by a man in possession who assumes to give him a title as tenant, the years and he finds that the landlord has only five years' title, he can not after five years set up against the landlord the just tertii, though, of course, the real owner can always recover against him. That is a perfectly intelligible doctrine. He took possession under a contract to pay rent so long as he held possession under the landlord, and to give it up at the end of the term to the landlord, and having taken it in that way he is not allowed to say that the man whose title he admits and under whose title he took possession has not a title. That is a well-established doctrine. That is estoppel by contract.
Indeed, the said doctrine of tenant's estoppel, finds statutory recognition in Section 116 of the Indian Evidence Act, 1872, for short 'the Evidence Act', in that, it states that no tenant of immovable property, or person claiming through such tenant, shall during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property".
This Court in Sri Ram Pasricha v. Jagannath and Ors. AIR 1976 SC 2355, has also ruled that in a suit for eviction by landlord, the tenant is estopped from questioning the title of the landlord because of Section 116 of the Act. The Judicial Committee in Krishna v. Barabani Coal Concern Ltd. AIR 1937 PC 251, when had occasion to examine the contention based on the words 'at the beginning of the tenancy' in Section 116 of the Evidence Act, pronounced that they do not give a ground for a person already in possession of land becoming tenant of another, to contend that there is no estoppel against his denying his subsequent lessor's title. Eversince, the accepted position is that Section 116 of the Evidence Act applies and estops even a person already in possession as tenant under one landlord from denying the title of his subsequent landlord when once he acknowledges him as his landlord by attornment or conduct. Therefore, a tenant of immovable property under landlord who becomes a tenant under another landlord by accepting him to be the owner who had derived title from the former landlord, can not be permitted to deny the lattcr's title, even when he is sought to be evicted by the latter on a permitted ground.
14. Taking the aforesaid material on record into consideration and applying the yardsticks prescribed by the Apex Court in Sheela's case (supra), I hold that there is a sufficient proof regarding ownership of the plaintiff No. 1 for the purpose of eviction under the provisions of M.P. Accommodation Control Act and both the Courts below have not committed any illegality in decreeing the suit in favour of the plaintiff/respondent in a concurrent manner. The substantial question of law is answered in the aforesaid manner against the defendant/appellant.
15. In the result, the appeal is dismissed hereby, however, without order as to costs.