Madhya Pradesh High Court
Santosh Kumar & Ors vs Smt.Parwati Bai on 26 July, 2011
1
S.A. No. 105/1996
HIGH COURT OF MADHYA PRADESH: JABALPUR
SINGLE BENCH:
HON. SHRI JUSTICE A.K. SHRIVASTAVA
SECOND APPEAL NO. 105/1996
......... Appellants : 1. Santosh Kumar,
S/o Mathura Prasad Pandey
2. Vinod Kumar,
S/o Mathura Prasad Pandey
Both residents of Gurunanak Ward,
Teen Galli, Damoh.
Versus
........ Respondent : Smt. Parwati Bai,
Widow of Raghunath Prasad
Dubey, Resident of Gurunanak
Ward, Teen Galli, Damoh.
................................................................................................
Appellants - Smt. Shobha Sharma, Advocate.
Respondent - Shri Z.M. Shah, Advocate with Shri
Sandeep Koshtha, Advocate.
...............................................................................................
JUDGMENT
(26/07/2011)
1. The tenants-defendants having lost from both the Courts below have knocked the doors of this Court by filing this second appeal assailing the judgment and decree passed by the two Courts below for eviction on the ground envisaged under Section 12(1)(h) of the M.P. Accommodation Control Act, 1961 (in short "the Act"). 2 S.A. No. 105/1996
2. No exhaustive statement of facts are required to be narrated for the purpose of disposal of this appeal. Suffice it to say that a suit for eviction on the relationship of landlord and tenant has been filed by the landlord-respondent on the ground envisaged under Section 12(1)(h) of the Act against the appellants-defendants on the averments that their father late Mathura Prasad Pandey obtained the suit premises on tenancy basis @ Rs.12/- per month from the husband of plaintiff. The said Shri Mathura Prasad Pandey had died on 5.12.1985. After his death, the defendants have become her tenant. A notice dated 6.5.87 was sent by the plaintiff to the defendant no.1 Santosh Kumar terminating his tenancy. In the notice, it has been mentioned that the house is in dilapidated condition and, therefore, it needs to be repaired which cannot be carried out without defendants being evicted. Thereafter, the suit was filed on 22.7.1987. Hence, it has been prayed that a decree of eviction be passed.
3. The defendants by filing their written statement denied the plaint averments and pleaded that neither they nor their father Mathura Prasad Pandey was the tenant of the plaintiff-respondent. Indeed, the suit property was gifted to Mathura Prasad Pandey by plaintiff's husband 3 S.A. No. 105/1996 Raghunath Prasad Dubey in lieu of Guru-dakshina. The rate of rent Rs.12/- per month is also denied. Further it has been pleaded by the appellants that they have acquired ownership right on the suit property on account of adverse possession.
4. Learned Trial Court framed necessary issues and after recording evidence of the parties decreed the suit on the ground envisaged under Section 12(1)(h) of the Act by further holding that appellants are the tenant of plaintiff- respondent and they have not acquired any ownership right on the suit property by way of adverse possession.
5. The First Appeal which was filed by the appellants has been dismissed by the impugned judgment and decree .
6. In this manner, this second appeal has been filed by the appellants.
7. This Court on 13.2.1996 admitted the appeal on the following substantial questions of law:-
(i) "Whether in absence of any cogent evidence, on record to prove that the appellants were the tenants of the respondent, the suit was liable to be decreed?"4 S.A. No. 105/1996
(ii) "Whether the appellants have perfected their title to the suit property by adverse possession?"
(iii) "Whether a decree under Section 12(1)(h) of the M.P. Accommodation Control Act could be passed without complying the mandatory conditions mentioned in Section 12(7) of M.P. Accommodation Control Act ?"
8. The contention of Smt. Shobhna Sharma, learned counsel for the appellants is that plaintiff-respondent has utterly failed to prove the relationship of landlord and tenant and if that would be the position, learned two Courts below erred in substantial error of law in decreeing the suit of eviction on the ground of Section 12(1)(h) of the Act. By addressing substantial question of law no.2, it has been contended by her that father of appellants namely Mathura Prasad Pandey acquired ownership right on the suit property by adverse possession and hence the decree of eviction has been wrongly passed by learned two Courts below. Lastly by hammering the findings of learned two Courts below decreeing the suit of plaintiff-respondent under Section 12(1)(h) of the Act, it has been put forth by her that in absence of any pleading and evidence of the 5 S.A. No. 105/1996 plaintiff in respect to the essential ingredients of Section 12(7) of the Act, the learned two Courts below grossly erred in passing a decree of eviction under sub-clause (h) of sub- section (1) of Section 12 of the Act. On these premised submissions, it has been put forth by her that by allowing this appeal, the judgment and decree passed by the learned two Courts below be set aside and suit of plaintiff be dismissed by further holding that appellants are the owners of the suit property.
9. Combating the aforesaid submissions of learned counsel for the appellants, Shri Z.M. Shah and Shri Sandeep Koshta, learned counsel for respondent-plaintiff argued in support of the impugned judgment and submitted that learned two Courts below after appreciating the pleadings and evidence placed on record came to hold that plaintiff is the owner of the suit property while father of defendants was the tenant and after his death the appellants by virtue of law have become her tenant and, therefore, it has been rightly held by the learned two Courts below that the relationship of landlord and tenant is existing between the parties and Mathura Prasad Pandey (father of defendants) did not acquire ownership right over the suit 6 S.A. No. 105/1996 property. It has been further contended by learned counsel that there is specific plea of plaintiff as well as she has also proved in her testimony the ground envisaged under Section 12(1)(h) of the Act and, therefore, the decree of eviction is rightly passed. On these premised submissions, it has been put forth by learned counsel that this appeal deserves to be dismissed.
10. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed.
Regarding Substantial Question of Law No.1
11. The plaintiff has filed the instant suit on the relationship of landlord and tenant. The relationship of tenancy has been specifically denied by the appellants in their written statement. According to them, the suit property was gifted by plaintiff's husband in favour of their father namely Mathura Prasad Pandey in lieu of Guru-dakshina and hence firstly Mathura Prasad Pandey and after his death, the defendants have become the owners of the suit property. However, it is borne out from the evidence that the said alleged gift deed was oral. Indeed, since there is no gift deed on record and it has also not been registered according to me, in view of Section 123 of the Transfer of Property Act, it cannot be said that the suit property was 7 S.A. No. 105/1996 gifted by plaintiff's husband in favour of defendants' father Mathura Prasad Pandey in lieu of Guru-dakshina. I have gone through the findings rendered by learned two Courts below and I find that a very detailed judgment has been passed by the learned two Courts below in this regard holding that the suit property was not gifted to defendants' father Mathura Prasad Pandey and thus rightly it has been arrived by learned two Courts below that Mathura Prasad Pandey did not become the owner of the suit property
12. The question now hinges is to whether the defendants are still tenants or not. True, in the written statement the relationship of landlord and tenant has been denied by them but there is overwhelming oral evidence of the plaintiff Parwati Bai and her witnesses Ramlal (PW-2), Udai Shankar (PW-3), Phool Singh (PW-4), Jammu Singh (PW-5) and Kailash Chand Dubey alias Kuttan (PW-6) that firstly the father of defendants 1 to 3 and husband of defendant no.4 Mathura Prasad Pandey was the tenant of plaintiff's husband Raghunath Prasad Dubey and after the death of original tenant the defendants became the tenant of plaintiff. Needless to say after the death of her husband Raghunath Prasad, plaintiff became the landlord of the 8 S.A. No. 105/1996 defendants. The oral evidence of defendants' witness Anusuiya Bai (DW-1) is that neither Mathura Prasad Pandey nor the defendants are the tenants. However, looking to the documentary evidence Ex. P/2 which is the receipt of the Municipality, Damoh mentioning the name of Mathura Prasad Pandey (defendants' predecessor) as tenant, Ex. P/3 house tax assessment register of Municipality, Damoh dated 7.12.1981 mentioning the name of Mathura Prasad Pandey as the tenant of plaintiff's husband Raghunath Prasad Dubey and Ex. P/3 another document of Municipality, Damoh issuing the bill to Raghunath Prasad Dubey (husband of plaintiff) for the payment of house tax mentioning Mathura Prasad Pandey to be the tenant, therefore, I am of the view that the oral evidence of the plaintiff is corroborated by documentary evidence also and it is hereby held that defendants' predecessor Mathura Prasad Pandey was the tenant of Raghunath Prasad Dubey. Since Mathura Prasad Pandey had died, after his death the defendants are the tenants of the plaintiff. The findings recorded by the learned two Courts below holding that the defendants are the tenant of plaintiffs are pure finding of facts and cannot be interfered 9 S.A. No. 105/1996 with in this appeal. Hence, the said finding of the learned two Courts below is hereby affirmed.
13. The substantial question of law No.1 is thus answered that by placing cogent evidence on record, the plaintiff- respondent has successfully proved that appellants are her tenants and this substantial question of law is thus answered against the appellants.
Regarding Substantial Question of Law No.2
14. Since I have already held while deciding substantial question of law no.1 that appellants are the tenants of plaintiff-respondent, therefore, this substantial question of law is to be decided against the appellants and it cannot be held that defendants have perfected their title by way of adverse possession.
Regarding Substantial Question of Law No.3
15. On bare perusal of the plaint (para 3) only this much is gathered that the tenanted premises is in dilapidated condition and it can fall at any moment of time and the plaintiff has sent the notice in this regard which is Ex. P/1 but the said premises has not been vacated by the defendants. By refuting the averments made in para 3 of the plaint, it has been pleaded by the defendants in their 10 S.A. No. 105/1996 written statement denying the fact that the suit premises is in dilapidated condition and can fall at any moment. They have also denied that any notice was ever given to them. However there is no pleading of plaintiff in respect to the ingredients of Section 12(7) of the Act. According to this provision, no order for eviction of a tenant can be made on the ground specified in clause (h) of sub-section (1) of Section 12 of the Act unless the Court is satisfied that the proposed reconstruction will not radically alter the purpose for which the accommodation was let or that radical alteration is in the public interest, and that the plans and estimates of such reconstruction have been properly prepared and that necessary funds for the purpose are available with the landlord. There is no pleading that the plaintiff is having any such plan or estimate of reconstruction and she is also having necessary funds available with her. In absence of such a pleading which is the essential requirement to obtain a decree under Section 12(1)(h) of the Act and further by not proving those ingredients by any documentary evidence like filing of plans and estimates and the bank account etc. to prove that she is having necessary funds to get the premises 11 S.A. No. 105/1996 reconstructed, according to me, learned two Courts below had grossly erred in passing the decree of eviction under Section 12(1)(h) of the Act. The decree under this clause is accordingly set aside.
16. The substantial question of law No.3 is thus answered in favour of appellants and against the respondent-plaintiff.
17. Resultantly, this appeal is allowed. The impugned judgment and decree of eviction passed under Section 12(1)(h) of the Act is hereby set aside and the suit of plaintiff for eviction on that ground is accordingly dismissed. However, the judgment passed by the learned two Courts below holding the plaintiff-respondent to be the landlord of the appellants is hereby upheld. Looking to the facts and circumstances, the parties are hereby directed to bear their own costs throughout.
(A.K. SHRIVASTAVA) Judge rao 12 S.A. No. 105/1996 S.A. No. 105/1996 26.7.2011 Smt. Shobha Sharma, Advocate for the appellants. Shri Z.M. Shah, Advocate with Shri Sandeep Koshtha for the respondent.
Arguments heard.
Judgment dictated, signed and dated separately.
(A.K. SHRIVASTAVA) Judge rao